U.S. Supreme Court Paris Adult Theatre I v. Slaton, 413 U.S.
49 (1973) Paris Adult Theatre I v.
Slaton No. 71-1051 Argued October 19,
1972 Decided June 21, 1973 413 U.S.
49 CERTIORARI TO THE SUPREME COURT OF
GEORGIA Syllabus Respondents sued under Georgia civil law to enjoin the
exhibiting by petitioners of two allegedly obscene films. There was
no prior restraint. In a jury-waived trial, the trial court (which
did not require "expert" affirmative evidence of obscenity) viewed
the films and thereafter dismissed the complaints on the ground
that the display of the films in commercial theaters to consenting
adult audiences (reasonable precautions having been taken to
exclude minors) was "constitutionally permissible." The Georgia
Supreme Court reversed, holding that the films constituted "hard
core" pornography not within the protection of the First
Amendment. Held: 1. Obscene material is not speech entitled to First Amendment
protection. Miller v. California, ante p. 413 U. S. 15 ; Roth v. United States, 354 U. S. 476 . P. 413 U. S.
54 .

															2. The Georgia civil procedure followed here (assuming use of a
constitutionally acceptable standard for determining what is
unprotected by the First Amendment) comported with the standards of Teitel Film Corp. v. Cusack, 390 U.
S. 139 ; Freedman v. Maryland, 380 U. S.
51 ; and Kingsley Books, Inc. v. Brown, 354 U. S. 436 . Pp. 413 U. S.
54 -55.

															3. It was not error to fail to require expert affirmative
evidence of the films' obscenity, since the films (which were the
best evidence of what they depicted) were themselves placed in
evidence. P. 413 U. S.
56 .

															4. States have a legitimate interest in regulating commerce in
obscene material and its exhibition in places of public
accommodation, including "adult" theaters. Pp. 413 U. S.
57 -69.

															(a) There is a proper state concern with safeguarding against
crime and the other arguably ill effects of obscenity by
prohibiting the public or commercial exhibition of obscene
material. Though conclusive proof is lacking, the States may
reasonably determine that a nexus does or might exist between
antisocial behavior and obscene material, just as States have acted
on unprovable assumptions in other areas of public control. Pp. 413 U. S.
57 -63.

															(b) Though States are free to adopt a laissez-faire policy toward commercialized obscenity, they are not
constitutionally obliged to do so. P. 413 U. S.
64 . Page 413 U. S. 50 (c) Exhibition of obscene material in places of public
accommodation is not protected by any constitutional doctrine of
privacy. A commercial theater cannot be equated with a private
home; nor is there here a privacy right arising from a special
relationship, such as marriage. Stanley v. Georgia, 394 U. S. 557 ; Griswold v. Connecticut, 381 U. S. 479 ,
distinguished. Nor can the privacy of the home be equated with a
"one" of "privacy" that follows a consumer of obscene materials
wherever he goes. United States v. Orito, post, p. 413 U. S. 139 ; United States v. 12 200-ft. Reels of Film, post, p. 123.
Pp. 413 U. S.
65 -67.

															(d) Preventing the unlimited display of obscene material is not
thought control. Pp. 413 U. S.
67 -68.

															(e) Not all conduct directly involving "consenting adults" only
has a claim to constitutional protection. Pp. 413 U. S.
68 -69.

															5. The Georgia obscenity laws involved herein should now be
reevaluated in the light of the First Amendment standards newly
enunciated by the Court in Miller v. California, ante, p.
15. Pp. 413 U. S.
69 -70.

															228 Ga. 343, 185 S.E.2d
768 , vacated and remanded.

															BURGER, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J.,
filed a dissenting opinion, post, p. 413 U. S. 70 .
BRENNAN, J., filed a dissenting opinion, in which STEWART and
MARSHALL, JJ., joined, post, p. 413 U. S.
73 .

															MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

															Petitioners are two Atlanta, Georgia, movie theaters and their
owners and managers, operating in the Page 413 U. S. 51 style of "adult" theaters. On December 28, 1970, respondents,
the local state district attorney and the solicitor for the local
state trial court, filed civil complaints in that court alleging
that petitioners were exhibiting to the public for paid admission
two allegedly obscene films, contrary to Georgia Code Ann. §
26-2101. [ Footnote 1 ] The two
films in question, "Magic Mirror" and "It All Comes Out in the
End," depict sexual conduct characterized Page 413 U. S. 52 by the Georgia Supreme Court as "hard core pornography" leaving
"little to the imagination."

															Respondents' complaints, made on behalf of the State of Georgia,
demanded that the two films be declared obscene and that
petitioners be enjoined from exhibiting the films. The exhibition
of the films was not enjoined, but a temporary injunction was
granted ex parte by the local trial court, restraining
petitioners from destroying the films or removing them from the
jurisdiction. Petitioners were further ordered to have one print
each of the films in court on January 13, 1971, together with the
proper viewing equipment.

															On January 13, 1971, 15 days after the proceedings began, the
films were produced by petitioners at a jury-waived trial. Certain
photographs, also produced at trial, were stipulated to portray the
single entrance to both Paris Adult Theatre I and Paris Adult
Theatre II as it appeared at the time of the complaints. These
photographs show a conventional, inoffensive theater entrance,
without any pictures, but with signs indicating that the theaters
exhibit "Atlanta's Finest Mature Feature Films." On the door itself
is a sign saying: "Adult Theatre -- You must be 21 and able to
prove it. If viewing the nude body offends you, Please Do Not
Enter."

															The two films were exhibited to the trial court. The only other
state evidence was testimony by criminal investigators that they
had paid admission to see the films and that nothing on the outside
of the theater indicated the full nature of what was shown. In
particular, nothing indicated that the films depicted -- as they
did -- scenes of simulated fellatio, cunnilingus, and group sex
intercourse. There was no evidence presented that minors had ever
entered the theaters. Nor was there evidence presented that
petitioners had a systematic policy of barring minors, apart from
posting signs at the entrance. On April 12, 1971, the trial judge
dismissed Page 413 U. S. 53 respondents' complaints. He assumed "that obscenity is
established," but stated:

															"It appears to the Court that the display of these films in a
commercial theatre, when surrounded by requisite notice to the
public of their nature and by reasonable protection against the
exposure of these films to minors, is constitutionally
permissible."

															On appeal, the Georgia Supreme Court unanimously reversed. It
assumed that the adult theaters in question barred minors and gave
a full warning to the general public of the nature of the films
shown, but held that the films were without protection under the
First Amendment. Citing the opinion of this Court in United
States v. Reidel, 402 U. S. 351 (1971), the Georgia court stated that "the sale and delivery of
obscene material to willing adults is not protected under the first
amendment." The Georgia court also held Stanley v.
Georgia, 394 U. S. 557 (1969), to be inapposite, since it did not deal with "the
commercial distribution of pornography, but with the right of
Stanley to possess, in the privacy of his home, pornographic
films." 228 Ga. 343, 345, 185 S.E.2d
768 , 769 (1971). After viewing the films, the Georgia Supreme
Court held that their exhibition should have been enjoined,
stating:

															"The films in this case leave little to the imagination. It is
plain what they purport to depict, that is, conduct of the most
salacious character. We hold that these films are also hard core
pornography, and the showing of such films should have been
enjoined, since their exhibition is not protected by the first
amendment." Id. at 347, 185 S.E.2d at 770. I It should be clear from the outset that we do not undertake to
tell the States what they must do, but Page 413 U. S. 54 rather to define the area in which they may chart their own
course in dealing with obscene material. This Court has
consistently held that obscene material is not protected by the
First Amendment as a limitation on the state police power by virtue
of the Fourteenth Amendment. Miller v. California, ante at 413 U. S. 225 ; Kois v. Wisconsin, 408 U. S. 229 , 408 U. S. 230 (1972); United States v. Reidel, supra, at 402 U. S. 354 ; Roth v. United States, 354 U. S. 476 , 354 U. S. 485 (1957).

															Georgia case law permits a civil injunction of the exhibition of
obscene materials. See 1024 Peachtree Corp. v. Slaton, 228
Ga. 102, 184 S.E.2d 144 (1971); Walter v. Slaton, 227 Ga.
676, 182 S.E.2d 464 (1971); Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971). While this procedure is civil in nature, and does not
directly involve the state criminal statute proscribing exhibition
of obscene material, [ Footnote
2 ] the Georgia case law permitting civil injunction does adopt
the definition of "obscene materials" used by the criminal statute.
[ Footnote 3 ] Today, in Miller v. California, supra, we have Page 413 U. S. 55 sought to clarify the constitutional definition of obscene
material subject to regulation by the States, and we vacate and
remand this case for reconsideration in light of Miller. This is not to be read as disapproval of the Georgia civil
procedure employed in this case, assuming the use of a
constitutionally acceptable standard for determining what is
unprotected by the First Amendment. On the contrary, such a
procedure provides an exhibitor or purveyor of materials the best
possible notice, prior to any criminal indictments, as to whether
the materials are unprotected by the First Amendment and subject to
state regulation. [ Footnote 4 ] See Kingsley Books, Inc. v. Brown, 354 U.
S. 436 , 354 U. S.
441 -444 (1957). Here, Georgia imposed no restraint on
the exhibition of the films involved in this case until after a
full adversary proceeding and a final judicial determination by the
Georgia Supreme Court that the materials were constitutionally
unprotected. [ Footnote 5 ] Thus,
the standards of Blount v. Rizzi, 400 U.
S. 410 , 400 U. S. 417 (1971); Teitel Film Corp. v. Cusack, 390 U.
S. 139 , 390 U. S.
141 -142 (1968); Freedman v. Maryland, 380 U. S. 51 , 380 U. S. 559 (1965), and Kingsley Books, Inc. v. Brown, supra, at 354 U. S.
443 -445, were met. Cf. United States v. Thirty-seven
Photographs, 402 U. S. 363 , 402 U. S.
367 -369 (1971) (opinion of WHITE, J.). Page 413 U. S. 56 Nor was it error to fail to require "expert" affirmative
evidence that the materials were obscene when the materials
themselves were actually placed in evidence. United States v.
Groner, 479 F.2d 577, 579-586 (CA5 1973); id. at
586-588 (Ainsworth, J., concurring); id. at 586-589
(Clark, J., concurring); United States v. Wild, 422 1.2d
34, 35-36 (CA2 1969), cert. denied, 402 U.S. 986 (1971); Kahm v. United States, 300 F.2d 78, 84 (CA5), cert.
denied, 369 U.S. 859 (1962); State v. Amato, 49
Wis.2d 638, 645, 183 N.W.2d
29 , 32 (1971), cert. denied sub nom. Amato v.
Wisconsin, 404 U.S. 1063 (1972). See Smith v.
California, 361 U. S. 147 , 361 U. S. 172 (1959) (Harlan, J., concurring and dissenting); United States
v. Brown, 328 F.
Supp. 196 , 199 (ED Va.1971). The films, obviously, are the best
evidence of what they represent. [ Footnote 6 ]

															"In the cases in which this Court has decided obscenity
questions since Roth, it has regarded the materials as
sufficient in themselves for the determination of the
question." Ginzburg v. United States, 383 U.
S. 463 , 383 U. S. 465 (1966). Page 413 U. S. 57 II We categorically disapprove the theory, apparently adopted by
the trial judge, that obscene, pornographic films acquire
constitutional immunity from state regulation simply because they
are exhibited for consenting adults only. This holding was properly
rejected by the Georgia Supreme Court. Although we have often
pointedly recognized the high importance of the state interest in
regulating the exposure of obscene materials to juveniles and
unconsenting adults, see Miller v. California, ante at 413 U. S. 18 -20; Stanley v. Georgia, 394 U.S. at 394 U. S. 567 ; Redrup v. New York, 386 U. S. 767 , 386 U. S. 769 (1967), this Court has never declared these to be the only
legitimate state interests permitting regulation of obscene
material. The States have a long-recognized legitimate interest in
regulating the use of obscene material in local commerce and in all
places of public accommodation, as long as these regulations do not
run afoul of specific constitutional prohibitions. See United
States v. Thirty-seven Photographs, supra, at 402 U. S.
376 -377 (opinion of WHITE, J.); United States v.
Reidel, 402 U.S. at 402 U. S.
354 -356. Cf. United States v. Thirty-seven
Photographs, supra, at 402 U. S. 378 (STEWART, J., concurring).

															"In an unbroken series of cases extending over a long stretch of
this Court's history, it has been accepted as a postulate that 'the
primary requirements of decency may be enforced against obscene
publications.' [ Near v. Minnesota, 283 U. S.
697 , 283 U. S. 716 (1931)]." Kingsley Books, Inc. v. Brown, supra, at 354 U. S.
440 .

															In particular, we hold that there are legitimate state interests
at stake in stemming the tide of commercialized obscenity, even
assuming it is feasible to enforce effective safeguards against
exposure to juveniles and to passersby. [ Footnote 7 ] Page 413 U. S. 58 Rights and interests "other than those of the advocates are
involved." Breard v. Alexandria, 341 U.
S. 622 , 341 U. S. 642 (1951). These include the interest of the public in the quality of
life and the total community environment, the tone of commerce in
the great city centers, and, possibly, the public safety itself.
The Hill-Link Minority Report of the Commission on Obscenity and
Pornography indicates that there is at least an arguable
correlation between obscene material and crime. [ Footnote 8 ] Quite Page 413 U. S. 59 apart from sex crimes, however, there remains one problem of
large proportions aptly described by Professor Bickel:

															"It concerns the tone of the society, the mode, or to use terms
that have perhaps greater currency, the style and quality of life,
now and in the future. A man may be entitled to read an obscene
book in his room, or expose himself indecently there. . . . We
should protect his privacy. But if he demands a right to obtain the
books and pictures he wants in the market, and to foregather in
public places -- discreet, if you will, but accessible to all --
with others who share his tastes, then to grant him his right
is to affect the world about the rest of us, and to impinge on
other privacies. Even supposing that each of us can, if he
wishes, effectively avert the eye and stop the ear (which, in
truth, we cannot), what is commonly read and seen and heard and
done intrudes upon us all, want it or not."

															22 The Public Interest 25-26 (Winter 1971). [ Footnote 9 ] (Emphasis added.) As Mr. Chief Justice
Warren stated, there is a "right of the Nation and of the States to
maintain a decent society . . . ," Page 413 U. S. 60 Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 199 (1964) (dissenting opinion). [ Footnote 10 ] See Memoirs v. Massachusetts, 383 U. S. 413 , 383 U. S. 457 (1966) (Harlan, J., dissenting); Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S.
256 -257 (1952); Kovacs v. Cooper, 336 U. S.
77 , 336 U. S. 86 -88
(1949).

															But, it is argued, there are no scientific data which
conclusively demonstrate that exposure to obscene material
adversely affects men and women or their society. It is urged on
behalf of the petitioners that, absent such a demonstration, any
kind of state regulation is "impermissible." We reject this
argument. It is not for us to resolve empirical uncertainties
underlying state legislation, save in the exceptional case where
that legislation plainly impinges upon rights protected by the
Constitution itself. [ Footnote
11 ] MR. JUSTICE BRENNAN, speaking for the Court in Ginsberg
v. New York, 390 U. S. 629 , 390 U. S.
642 -643 (1968), said: "We do not demand of legislatures scientifically certain criteria of legislation.' Noble
State Bank v. Haskell, 219 U. S. 104 , 219 U. S.
110 ." Although there is no conclusive proof of a
connection between antisocial behavior Page 413 U. S. 61 and obscene material, the legislature of Georgia could quite
reasonably determine that such a connection does or might exist. In
deciding Roth, this Court implicitly accepted that a legislature
could legitimately act on such a conclusion to protect "the social
interest in order and morality." Roth v. United States, 354 U.S. at 354 U. S. 485 ,
quoting Chaplinsky v. New Hampshire, 315 U.
S. 568 , 315 U. S. 572 (1942) (emphasis added in Roth ). [ Footnote 12 ]

															From the beginning of civilized societies, legislators and
judges have acted on various unprovable assumptions. Such
assumptions underlie much lawful state regulation of commercial and
business affairs. See Ferguson v. Skrupa, 372 U.
S. 726 , 372 U. S. 730 (1963); Breard v. Alexandria, 341 U.S. at 341 U. S.
632 -633, 341 U. S.
641 -645; Lincoln Federal Labor Union v. Northwestern
Iron Metal Co., 335 U. S. 525 , 335 U. S.
536 -537 (1949). The same is true of the federal
securities and antitrust laws and a host of federal regulations. See SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180 , 375 U. S.
186 -195 (1963); American Power & Light Co. v.
SEC, 329 U. S. 90 , 329 U. S. 99 -103
(1946); North American Co. v. SEC, 327 U.
S. 686 , 327 U. S.
705 -707 (1946), and cases cited. See also Brooks v.
United States, 267 U. S. 432 , 267 U. S.
436 -437 (1925), and Hoke v. United States, 227 U. S. 308 , 227 U. S. 322 (1913). On the basis of these assumptions both Congress and state
legislatures have, for example, drastically restricted
associational rights by adopting antitrust laws, and have strictly
regulated public expression by issuers of and dealers in
securities, profit sharing "coupons," and "trading stamps," Page 413 U. S. 62 commanding what they must and must not publish and announce. See Sugar Institute, Inc. v. United States, 297 U.
S. 553 , 297 U. S.
597 -602 (1936); Merrick v. N.W. Halsey &
Co., 242 U. S. 568 , 242 U. S.
584 -589 (1917); Caldwell v. Sioux Falls Stock Yards
Co., 242 U. S. 559 , 242 U. S.
567 -568 (1917); Hall v. Geiger-Jones Co., 242 U. S. 539 , 242 U. S.
548 -552 (1917); Tanner v. Little, 240 U.
S. 369 , 240 U. S.
383 -386 (1916); Rast v. Van Deman Lewis Co., 240 U. S. 342 , 240 U. S.
363 -368 (1916). Understandably those who entertain an
absolutist view of the First Amendment find it uncomfortable to
explain why rights of association, speech, and press should be
severely restrained in the marketplace of goods and money, but not
in the marketplace of pornography.

															Likewise, when legislatures and administrators act to protect
the physical environment from pollution and to preserve our
resources of forests, streams, and parks, they must act on such
imponderables as the impact of a new highway near or through an
existing park or wilderness area. See Citizens to Preserve
Overton Park v. Volpe, 401 U. S. 402 , 401 U. S.
417 -420 (1971). Thus, § 18(a) of the Federal-Aid Highway
Act of 1968, 23 U.S.C. § 138, and the Department of Transportation
Act of 1966, as amended, 82 Stat. 824, 49 U.S.C. § 1653(f), have
been described by Mr. Justice Black as

															"a solemn determination of the highest law-making body of this
Nation that the beauty and health-giving facilities of our parks
are not to be taken away for public roads without hearings,
factfindings, and policy determinations under the supervision of a
Cabinet officer. . . ." Citizens to Preserve Overton Park, supra, at 401 U. S. 421 (separate opinion joined by BRENNAN, J.). The fact that a
congressional directive reflects unprovable assumptions about what
is good for the people, including imponderable aesthetic
assumptions, is not a sufficient reason to find that statute
unconstitutional. Page 413 U. S. 63 If we accept the unprovable assumption that a complete education
requires the reading of certain books, see Board of Education
v. Allen, 392 U. S. 236 , 392 U. S. 245 (1968), and Johnson v. New York State Education Dept., 449
F.2d 871, 882-883 (CA2 1971) (dissenting opinion), vacated and
remanded to consider mootness, 409 U. S.
75 (1972), id. at 777 (MARSHALL, J.,
concurring), and the well nigh universal belief that good books,
plays, and art lift the spirit, improve the mind, enrich the human
personality, and develop character, can we then say that a state
legislature may not act on the corollary assumption that commerce
in obscene books, or public exhibitions focused on obscene conduct,
have a tendency to exert a corrupting and debasing impact leading
to antisocial behavior? "Many of these effects may be intangible
and indistinct, but they are nonetheless real." American Power
& Light Co. v. SEC, supra, at 329 U. S. 103 .
Mr. Justice Cardozo said that all laws in Western civilization are
"guided by a robust common sense. . . ." Steward Machine Co. v.
Davis, 301 U. S. 548 , 301 U. S. 590 (1937). The sum of experience, including that of the past two
decades, affords an ample basis for legislatures to conclude that a
sensitive, key relationship of human existence, central to family
life, community welfare, and the development of human personality,
can be debased and distorted by crass commercial exploitation of
sex. Nothing in the Constitution prohibits a State from reaching
such a conclusion and acting on it legislatively simply because
there is no conclusive evidence or empirical data.

															It is argued that individual "free will" must govern, even in
activities beyond the protection of the First Amendment and other
constitutional guarantees of privacy, and that government cannot
legitimately impede an individual's desire to see or acquire
obscene plays, movies, and books. We do indeed base our society
on Page 413 U. S. 64 certain assumptions that people have the capacity for free
choice. Most exercises of individual free choice -- those in
politics, religion, and expression of idea are explicitly protected
by the Constitution. Totally unlimited play for free will, however,
is not allowed in our or any other society. We have just noted, for
example, that neither the First Amendment nor "free will" precludes
States from having "blue sky" laws to regulate what sellers of
securities may write or publish about their wares. See
supra at 413 U. S. 61 -62.
Such laws are to protect the weak, the uninformed, the
unsuspecting, and the gullible from the exercise of their own
volition. Nor do modern societies leave disposal of garbage and
sewage up to the individual "free will," but impose regulation to
protect both public health and the appearance of public places.
States are told by some that they must await a
" laissez-faire " market solution to the
obscenity-pornography problem, paradoxically "by people who have
never otherwise had a kind word to say for laissez-faire, "
particularly in solving urban, commercial, and environmental
pollution problems. See I. Kristol, On the Democratic Idea
in America 37 (1972).

															The States, of course, may follow such a
" laissez-faire " policy and drop all controls on
commercialized obscenity, if that is what they prefer, just as they
can ignore consumer protection in the marketplace, but nothing in
the Constitution compels the States to do so with regard
to matters falling within state jurisdiction. See United States
v. Reidel, 402 U.S. at 402 U. S. 357 ; Memoirs v. Massachusetts, 383 U.S. at 383 U. S. 462 (WHITE, J., dissenting).

															"We do not sit as a super-legislature to determine the wisdom,
need, and propriety of laws that touch economic problems, business
affairs, or social conditions." Griswold v. Connecticut, 381 U.
S. 479 , 381 U. S. 482 (1965). See Ferguson v. Skrupa, 372 U.S. at 372 U. S. 731 ; Day-Brite Lighting, Inc. v. Missouri, 342 U.
S. 421 , 342 U. S. 423 (1952). Page 413 U. S. 65 It is asserted, however, that standards for evaluating state
commercial regulations are inapposite in the present context, as
state regulation of access by consenting adults to obscene material
violates the constitutionally protected right to privacy enjoyed by
petitioners' customers. Even assuming that petitioners have
vicarious standing to assert potential customers' rights, it is
unavailing to compare a theater open to the public for a fee, with
the private home of Stanley v. Georgia, 394 U.S. at 394 U. S. 568 ,
and the marital bedroom of Griswold v. Connecticut, supra, at 381 U. S.
485 -486. This Court, has, on numerous occasions, refused
to hold that commercial ventures such as a motion-picture house are
"private" for the purpose of civil rights litigation and civil
rights statutes. See Sullivan v. Little Hunting Park,
Inc., 396 U. S. 229 , 396 U. S. 236 (1969); Daniel v. Paul, 395 U. S. 298 , 395 U. S.
305 -308 (1969); Blow v. North Carolina, 379 U. S. 684 , 379 U. S.
685 -686 (1965); Hamm v. Rock Hill, 379 U.
S. 306 , 379 U. S.
307 -308 (1964); Heart of Atlanta Motel, Inc. v.
United States, 379 U. S. 241 , 379 U. S. 247 , 379 U. S.
260 -261 (1964). The Civil Rights Act of 1964
specifically defines motion picture houses and theaters as places
of "public accommodation" covered by the Act as operations
affecting commerce. 78 Stat. 243, 42 U.S.C. § § 2000a(b)(3),
(c).

															Our prior decisions recognizing a right to privacy guaranteed by
the Fourteenth Amendment included

															"only personal rights that can be deemed 'fundamental' or
'implicit in the concept of ordered liberty.' Palko v.
Connecticut, 302 U. S. 319 , 302 U. S.
325 (1937)." Roe v. Wade, 410 U. S. 113 , 410 U. S. 152 (1973). This privacy right encompasses and protects the personal
intimacies of the home, the family, marriage, motherhood,
procreation, and childrearing. Cf. Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S.
453 -454 (1972); id. at 405 U. S. 460 , 405 U. S.
463 -465 (WHITE, J., concurring); Stanley v. Georgia,
supra, at 394 U. S. 568 ; Loving v.
Virginia , 388 Page 413 U. S. 66 U.S. 1, 388 U. S. 12 (1967); Griswold v. Connecticut, supra, at 381 U. S. 486 ; Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 166 (1944); Skinner v. Oklahoma, 316 U.
S. 535 , 316 U. S. 541 (1942); Pierce v. Society of Sisters, 268 U.
S. 510 , 268 U. S. 535 (1925); Meyer v. Nebraska, 262 U.
S. 390 , 262 U. S. 399 (1923). Nothing, however, in this Court's decisions intimates that
there is any "fundamental" privacy right "implicit in the concept
of ordered liberty" to watch obscene movies in places of public
accommodation.

															If obscene material unprotected by the First Amendment, in
itself, carried with it a "penumbra" of constitutionally protected
privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the "privacy of the home,"
which was hardly more than a reaffirmation that "a man's home is
his castle." Cf. Stanley v. Georgia, supra, at 394 U. S. 564 .
[ Footnote 13 ] Moreover, we
have declined to equate the privacy of the home relied on in Stanley with a "zone" of "privacy" that follows a
distributor or a consumer of obscene materials wherever he goes. See United States v. Orito, post at 413 U. S.
141 -143; United States v. 12 200-ft. Reels of Film,
post at 413 U. S.
126 -129; United States v. Thirty-seven
Photographs, 42 U.S. at 43 U. S. 376 -377
(opinion of WHITE, J.); United States v. Reidel, supra, at 402 U. S. 355 .
The idea of a "privacy" right and a place of public accommodation
are, in this context, Page 413 U. S. 67 mutually exclusive. Conduct or depictions of conduct that the
state police power can prohibit on a public street do not become
automatically protected by the Constitution merely because the
conduct is moved to a bar or a "live" theater stage, any more than
a "live" performance of a man and woman locked in a sexual embrace
at high noon in Times Square is protected by the Constitution
because they simultaneously engage in a valid political
dialogue.

															It is also argued that the State has no legitimate interest in
"control [of] the moral content of a person's thoughts," Stanley v. Georgia, supra, at 394 U. S. 565 ,
and we need not quarrel with this. But we reject the claim that the
State of Georgia is here attempting to control the minds or
thoughts of those who patronize theaters. Preventing unlimited
display or distribution of obscene material, which by definition
lacks any serious literary, artistic, political, or scientific
value as communication, Miller v. California, ante at 413 U. S. 24 , 413 U. S. 34 , is
distinct from a control of reason and the intellect. Cf. Kois
v. Wisconsin, 408 U. S. 229 (1972); Roth v. United States, supra, at 354 U. S.
485 -487; Thornhill v. Alabama, 310 U. S.
88 , 310 U. S.
101 -102 (1940); Finnis, "Reason and Passion": The
Constitutional Dialectic of Free Speech and Obscenity, 116
U.Pa.L.Rev. 222, 229-230, 241-243 (1967). Where communication of
ideas, protected by the First Amendment, is not involved, or the
particular privacy of the home protected by Stanley, or any of the
other "areas or zones" of constitutionally protected privacy, the
mere fact that, as a consequence, some human "utterances" or.
"thoughts" may be incidentally affected does not bar the State from
acting to protect legitimate state interests. Cf. Roth v.
United States, supra, at 354 U. S. 483 ,
485-487; Beauharnais v. Illinois, 343 U.S. at 343 U. S.
256 -257. The fantasies of a drug addict are his own and
beyond the reach of government, but government regulation of drug
sales is not Page 413 U. S. 68 prohibited by the Constitution. Cf. United States v. Reidel,
supra, at 402 U. S.
359 -360 (Harlan, J., concurring).

															Finally, petitioners argue that conduct which directly involves
"consenting adults" only has, for that sole reason, a special claim
to constitutional protection. Our Constitution establishes a broad
range of conditions on the exercise of power by the States, but for
us to say that our Constitution incorporates the proposition that
conduct involving consenting adults only is always beyond state
regulation, [ Footnote 14 ] is
a step we are unable to take. [ Footnote 15 ] Commercial exploitation of depictions,
descriptions, or exhibitions of obscene conduct on commercial
premises open to the adult public falls within a State's broad
power to regulate commerce and protect the public Page 413 U. S. 69 environment. The issue in this context goes beyond whether
someone, or even the majority, considers the conduct depicted as
"wrong" or "sinful." The States have the power to make a morally
neutral judgment that public exhibition of obscene material, or
commerce in such material, has a tendency to injure the community
as a whole, to endanger the public safety, or to jeopardize, in Mr.
Chief Justice Warren's words, the States' "right . . . to maintain
a decent society." Jacobellis v. Ohio, 378 U.S. at 378 U. S. 199 (dissenting opinion).

															To summarize, we have today reaffirmed the basic holding of Roth v. United States, supra, that obscene material has no
protection under the First Amendment. See Miller v. California,
supra, and Kaplan v. California, post, p. 413 U. S. 115 . We
have directed our holdings, not at thoughts or speech, but at
depiction and description of specifically defined sexual conduct
that States may regulate within limits designed to prevent
infringement of First Amendment rights. We have also reaffirmed the
holdings of United States v. Reidel, supra, and United
States v. Thirty-seven Photographs, supra, that commerce in
obscene material is unprotected by any constitutional doctrine of
privacy. United States v. Orito, post at 413 U. S.
141 -143; United States v. 12 200-ft. Reels of Film,
post at 413 U. S.
126 -129. In this case, we hold that the States have a
legitimate interest in regulating commerce in obscene material and
in regulating exhibition of obscene material in places of public
accommodation, including so-called "adult" theaters from which
minors are excluded. In light of these holdings, nothing precludes
the State of Georgia from the regulation of the allegedly obscene
material exhibited in Paris Adult Theatre I or II, provided that
the applicable Georgia law, as written or authoritatively
interpreted by the Georgia courts, meets the First Amendment
standards set forth in Miller v. California, ante at 413 U. S. 23 -25.
The Page 413 U. S. 70 judgment is vacated and the case remanded to the Georgia Supreme
Court for further proceedings not inconsistent with this opinion
and Miller v. California, supra. See United States v.
12 200-ft. Reels of Film, post at 413 U. S. 130 n. 7. Vacated and remanded. [ Footnote 1 ]

															This is a civil proceeding. Georgia Code Ann. § 26-2101 defines
a criminal offense, but the exhibition of materials found to be
"obscene" as defined by that statute may be enjoined in a civil
proceeding under Georgia case law. 1024 Peachtree Corp. v.
Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971); Walter v.
Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971); Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971). See infra at 413 U. S. 54 .
Georgia Code Ann. § 26-2101 reads in relevant part:

															"Distributing obscene materials."

															"(a) A person commits the offense of distributing obscene
materials when he sells, lends, rents, leases, gives, advertises,
publishes, exhibits or otherwise disseminates to any person any
obscene material of any description, knowing the obscene nature
thereof, or who offers to do so, or who possesses such material
with the intent so to do. . . ."

															"(b) Material is obscene if considered as a whole, applying
community standards, its predominant appeal is to prurient
interest, that is, a shameful or morbid interest in nudity, sex or
excretion, and utterly without redeeming social value and if, in
addition, it goes substantially beyond customary limits of candor
in describing or representing such matters. . ."

															"(d) A person convicted of distributing obscene material shall
for the first offense be punished as for a misdemeanor, and for any
subsequent offense shall be punished by imprisonment for not less
than one nor more than five years, or by a fine not to exceed
$5,000, or both."

															The constitutionality of Georgia Code Ann. § 26-2101 was upheld
against First Amendment and due process challenges in Gable v.
Jenkins, 309 F.
Supp. 998 (ND Ga.1969), aff'd per curiam, 397 U.
S. 592 (1970).

															[ Footnote 2 ] See Georgia Code Ann. § 26-2101, set out supra at 51 n. 1.

															[ Footnote 3 ]

															In Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971), the Georgia Supreme Court described the cases before it as
follows:

															"Each case was commenced as a civil action by the District
Attorney of the Superior Court of Fulton County jointly with the
Solicitor of the Criminal Court of Fulton County. In each case, the
plaintiffs alleged that the defendants named therein were
conducting a business of exhibiting motion picture films to members
of the public; that they were in control and possession of the
described motion picture film, which they were exhibiting to the
public on a fee basis; that said film"

															"constitutes a flagrant violation of Ga.Code § 22101 in that the
sole and dominant theme of the motion picture film . . . considered
as a whole, and applying contemporary standards, appeals to the
prurient interest in sex and nudity, and that said motion picture
film is utterly and absolutely without any redeeming social value
whatsoever and transgresses beyond the customary limits of candor
in describing and discussing sexual matters." Id. at 676-677, 182 S.E.2d at 465.

															[ Footnote 4 ]

															This procedure would have even more merit if the exhibitor or
purveyor could also test the issue of obscenity in a similar civil
action, prior to any exposure to criminal penalty. We are not here
presented with the problem of whether a holding that materials were
not obscene could be circumvented in a later proceeding by evidence
of pandering. See Memoirs v. Massachusetts, 383 U.
S. 413 , 383 U. S. 458 n. 3 (1966) (Harlan, J., dissenting); Ginzburg v. United
States, 383 U. S. 463 , 383 U. S. 496 (1966) (Harlan, J., dissenting).

															[ Footnote 5 ]

															At the specific request of petitioners' counsel, the copies of
the films produced for the trial court were placed in the
"administrative custody" of that court pending the outcome of this
litigation.

															[ Footnote 6 ]

															This is not a subject that lends itself to the traditional use
of expert testimony. Such testimony is usually admitted for the
purpose of explaining to lay jurors what they otherwise could not
understand. Cf. 2 J. Wigmore, Evidence §§ 556, 559 (3d
ed.1940). No such assistance is needed by jurors in obscenity
cases; indeed, the "expert witness" practices employed in these
cases have often made a mockery out of the otherwise sound concept
of expert testimony. See United States v. Groner, 479 F.2d
577, 585-586 (CA5 1973); id. at 587-588 (Ainsworth, J.,
concurring). "Simply stated, hard core pornography . . . can and
does speak for itself." United States v. Wild, 422 F.2d
34, 36 (CA2 1970), cert. denied, 402 U.S. 986 (1971). We
reserve judgment, however, on the extreme case, not presented here,
where contested materials are directed at such a bizarre deviant
group that the experience of the trier of fact would be plainly
inadequate to judge whether the material appeals to the prurient
interest. See Mishkin v. New York, 383 U.
S. 502 , 383 U. S.
508 -510 (1966); United States v. Klaw, 350 F.2d
155, 167-168 (CA2 1965).

															[ Footnote 7 ]

															It is conceivable that an "adult" theater can -- if it really
insists -- prevent the exposure of its obscene wares to juveniles.
An "adult" bookstore, dealing in obscene books, magazines, and
pictures cannot realistically make this claim. The Hill-Link
Minority Report of the Commission on Obscenity and Pornography
emphasizes evidence (the Abelson National Survey of Youth and
Adults) that, although most pornography may be bought by
elders,

															"the heavy users and most highly exposed people to pornography
are adolescent females (among women) and adolescent and young adult
males (among men)."

															The Report of the Commission on Obscenity and Pornography 401
(1970). The legitimate interest in preventing exposure of juveniles
to obscene material cannot be fully served by simply barring
juveniles from the immediate physical premises of "adult"
bookstores, when there is a flourishing "outside business" in these
materials.

															[ Footnote 8 ]

															The Report of the Commission on Obscenity and Pornography
390-412 (1970). For a discussion of earlier studies indicating "a
division of thought [among behavioral scientists] on the
correlation between obscenity and socially deleterious behavior," Memoirs v. Massachusetts, supra, at 383 U. S. 451 ,
and references to expert opinions that obscene material may induce
crime and antisocial conduct, see id. at 383 U. S.
451 -453 (Clark, J., dissenting). Mr. Justice Clark
emphasized:

															"While erotic stimulation caused by pornography may be legally
insignificant in itself, there are medical experts who believe that
such stimulation frequently manifests itself in criminal sexual
behavior or other antisocial conduct. For example, Dr. George W.
Henry of Cornell University has expressed the opinion that
obscenity, with its exaggerated and morbid emphasis on sex,
particularly abnormal and perverted practices, and its unrealistic
presentation of sexual behavior and attitudes, may induce
antisocial conduct by the average person. A number of sociologists
think that this material may have adverse effects upon individual
mental health, with potentially disruptive consequences for the
community."

															" * * * *" "Congress and the legislatures of every State have enacted
measures to restrict the distribution of erotic and pornographic
material, justifying these controls by reference to evidence that
antisocial behavior may result in part from reading obscenity." Id. at 383 U. S.
452 -453 (footnotes omitted).

															[ Footnote 9 ] See also Berns, Pornography vs. Democracy: The Case for
Censorship, in 22 The Public Interest 3 (Winter 1971); van den
Haag, in Censorship: For & Against 156-157 (H. Hart
ed.1971).

															[ Footnote 10 ]

															"In this and other cases in this area of the law, which are
coming to us in ever-increasing numbers, we are faced with the
resolution of rights basic both to individuals and to society as a
whole. Specifically, we are called upon to reconcile the right of
the Nation and of the States to maintain a decent society and, on
the other hand, the right of individuals to express themselves
freely in accordance with the guarantees of the First and
Fourteenth Amendments." Jacobellis v. Ohio, supra, at 378 U. S. 199 (Warren, C.J., dissenting).

															[ Footnote 11 ]

															Mr. Justice Holmes stated in another context, that:

															"[T]he proper course is to recognize that a state legislature
can do whatever it sees fit to do unless it is restrained by some
express prohibition in the Constitution of the United States or of
the State, and that Courts should be careful not to extend such
prohibitions beyond their obvious meaning by reading into them
conceptions of public policy that the particular Court may happen
to entertain." Tyson & Brother v. Banton, 273 U.
S. 418 , 273 U. S. 446 (1927) (dissenting opinion joined by Brandeis, J.).

															[ Footnote 12 ]

															" It has been well observed that such [lewd and obscene]
utterances are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social
interest in order and morality. " Roth v. United States, 354 U.
S. 476 , 354 U. S. 485 (1957), quoting Chaplinsky v. New Hampshire, 315 U.
S. 568 , 315 U. S. 572 (1942) (emphasis added in Roth ).

															[ Footnote 13 ]

															The protection afforded by Stanley v. Georgia, 394 U. S. 557 (1969), is restricted to a place, the home. In contrast, the
constitutionally protected privacy of family, marriage, motherhood,
procreation, and childrearing is not just concerned with a
particular place, but with a protected intimate relationship. Such
protected privacy extends to the doctor's office, the hospital, the
hotel room, or as otherwise required to safeguard the right to
intimacy involved. Cf. Roe v. Wade, 410 U.
S. 113 , 410 U. S.
152 -154 (1973); Griswold v. Connecticut, 381 U. S. 479 , 381 U. S.
485 -486 (1965). Obviously, there is no necessary or
legitimate expectation of privacy which would extend to marital
intercourse on a street corner or a theater stage.

															[ Footnote 14 ] Cf. J. Mill, On Liberty 13 (1955 ed.).

															[ Footnote 15 ]

															The state statute books are replete with constitutionally
unchallenged laws against prostitution, suicide, voluntary
self-mutilation, brutalizing "bare fist" prize fights, and duels,
although these crimes may only directly involve "consenting
adults." Statutes making bigamy a crime surely cut into an
individual's freedom to associate, but few today seriously claim
such statutes violate the First Amendment or any other
constitutional provision. See Davis v. Beason, 133 U. S. 333 , 133 U. S.
344 -345 (1890). Consider also the language of this Court
in McLaughlin v. Florida, 379 U.
S. 184 , 379 U. S. 196 (1964), as to adultery; Southern Surety Co. v. Oklahoma, 241 U. S. 582 , 241 U. S. 586 (1916), as to fornication; Hoke v. United States, 227 U. S. 308 , 227 U. S.
320 -322 (1913), and Caminetti v. United States, 242 U. S. 470 , 242 U. S.
484 -487, 242 U. S.
491 -492 (1917), as to "white slavery"; Murphy v.
California, 225 U. S. 623 , 225 U. S. 629 (1912), as to billiard halls; and the Lottery Case, 188 U. S. 321 , 188 U. S.
355 -356 (1903), as to gambling. See also the
summary of state statutes prohibiting bearbaiting, cockfighting,
and other brutalizing animal "sports," in Stevens, Fighting and
Baiting, in Animals and Their Legal Rights 112-127 (Leavitt
ed.1970). As Professor Irving Kristol has observed:

															"Bearbaiting and cockfighting are prohibited only in part out of
compassion for the suffering animals; the main reason they were
abolished was because it was felt that they debased and brutalized
the citizenry who flocked to witness such spectacles."

															On the Democratic Idea in America 33 (1972).

															MR. JUSTICE DOUGLAS, dissenting.

															My Brother BRENNAN is to be commended for seeking a new path
through the thicket which the Court entered when it undertook to
sustain the constitutionality of obscenity laws and to place limits
on their application. I have expressed on numerous occasions my
disagreement with the basic decision that held that "obscenity" was
not protected by the First Amendment. I disagreed also with the
definitions that evolved. Art and literature reflect tastes; and
tastes, like musical appreciation, are hardly reducible to precise
definitions. That is one reason I have always felt that "obscenity"
was not an exception to the First Amendment. For matters of taste,
like matters of belief, turn on the idiosyncrasies of individuals.
They are too personal to define and too emotional and vague to
apply, as witness the prison term for Ralph Ginzburg, Ginzburg
v. United States, 383 U. S. 463 , not
for what he printed but for the sexy manner in which he advertised
his creations.

															The other reason I could not bring myself to conclude that
"obscenity" was not covered by the First Amendment was that, prior
to the adoption of our Constitution and Bill of Rights the Colonies
had no law excluding "obscenity" from the regime of freedom of
expression and press that then existed. I could find no such laws;
and more important, our leading colonial expert, Julius Goebel,
could find none, J. Goebel, Development of Legal Institutions
(1946); J. Goebel, Felony and Misdemeanor (1937). So I became
convinced that the Page 413 U. S. 71 creation of the "obscenity" exception to the First Amendment was
a legislative and judicial tour de force; that, if we were
to have such a regime of censorship and punishment, it should be
done by constitutional amendment.

															People are, of course, offended by many offerings made by
merchants in this area. They are also offended by political
pronouncements, sociological themes, and by stories of official
misconduct. The list of activities and publications and
pronouncements that offend someone is endless. Some of it goes on
in private; some of it is inescapably public, as when a government
official generates crime, becomes a blatant offender of the moral
sensibilities of the people, engages in burglary, or breaches the
privacy of the telephone, the conference room, or the home. Life in
this crowded modern technological world creates many offensive
statements and many offensive deeds. There is no protection against
offensive ideas, only against offensive conduct.

															"Obscenity" at most is the expression of offensive ideas. There
are regimes in the world where ideas "offensive" to the majority
(or at least to those who control the majority) are suppressed.
There life proceeds at a monotonous pace. Most of us would find
that world offensive. One of the most offensive experiences in my
life was a visit to a nation where bookstalls were filled only with
books on mathematics and books on religion.

															I am sure I would find offensive most of the books and movies
charged with being obscene. But in a life that has not been short,
I have yet to be trapped into seeing or reading something that
would offend me. I never read or see the materials coming to the
Court under charges of "obscenity," because I have thought the
First Amendment made it unconstitutional for me to act as a censor.
I see ads in bookstores and neon lights over theaters that resemble
bait for those who Page 413 U. S. 72 seek vicarious exhilaration. As a parent or a priest or as a
teacher I would have no compunction in edging my children or wards
away from the books and movies that did no more than excite man's
base instincts. But I never supposed that government was permitted
to sit in judgment on one's tastes or belief save as they involved
action within the reach of the police power of government.

															I applaud the effort of my Brother BRENNAN to forsake the low
road which the Court has followed in this field. The new regime he
would inaugurate is much closer than the old to the policy of
abstention which the First Amendment proclaims. But since we do not
have here the unique series of problems raised by
government-imposed or government-approved captive audiences, cf. Public Utilities Comm'n v. Pollak, 343 U.
S. 451 , I see no constitutional basis for fashioning a
rule that makes a publisher, producer, bookseller, librarian, or
movie house operator criminally responsible, when he fails to take
affirmative steps to protect the consumer against literature,
books, or movies offensive * to those who
temporarily occupy the seats of the mighty. Page 413 U. S. 73 When man was first in the jungle, he took care of himself. When
he entered a societal group, controls were necessarily imposed. But
our society -- unlike most in the world -- presupposes that freedom
and liberty are in a frame of reference that makes the individual,
not government, the keeper of his tastes, beliefs, and ideas. That
is the philosophy of the First Amendment; and it is the article of
faith that sets us apart from most nations in the world.

															* What we do today is rather ominous as respects librarians. The
net now designed by the Court is so finely meshed that, taken
literally, it could result in raids on libraries. Libraries, I had
always assumed, were sacrosanct, representing every part of the
spectrum. If what is offensive to the most influential person or
group in a community can be purged from a library, the library
system would be destroyed.

															A few States exempt librarians from laws curbing distribution of
"obscene" literature. California's law, however, provides:

															"Every person who, with knowledge that a person is a minor, or
who fails to exercise reasonable care in ascertaining the true age
of a minor, knowingly distributes to or sends or causes to be sent
to, or exhibits to, or offers to distribute or exhibit any harmful
matter to a minor, is guilty of a misdemeanor."

															Calif.Penal Code § 313.1.

															A "minor" is one under 18 years of age; the word "distribute"
means "to transfer possession"; "matter" includes "any book,
magazine, newspaper, or other printed or written material." Id. §§ 313(b), (d), (g).

															"Harmful matter" is defined in § 313(a) to mean

															"matter, taken as a whole, the predominant appeal of which to
the average person, applying contemporary standards, is to prurient
interest, i.e., a shameful or morbid interest in nudity, sex, or
excretion; and is matter which taken as a whole goes substantially
beyond customary limits of candor in description or representation
of such matters; and is matter which taken as a whole is utterly
without redeeming social importance for minors."

															MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR.
JUSTICE MARSHALL join, dissenting.

															This case requires the Court to confront once again the vexing
problem of reconciling state efforts to suppress sexually oriented
expression with the protections of the First Amendment, as applied
to the States through the Fourteenth Amendment. No other aspect of
the First Amendment has, in recent years, demanded so substantial a
commitment of our time, generated such disharmony of views, and
remained so resistant to the formulation of stable and manageable
standards. I am convinced that the approach initiated 16 years ago
in Roth v. United States, 354 U.
S. 476 (1957), and culminating in the Court's decision
today, cannot bring stability to this area of the law without
jeopardizing fundamental First Amendment values, and I have
concluded that the Page 413 U. S. 74 time has come to make a significant departure from that
approach.

															In this civil action in the Superior Court of Fulton County, the
State of Georgia sought to enjoin the showing of two motion
pictures, It All Comes Out In The End, and Magic Mirror, at the
Paris Adult Theatres (I and II) in Atlanta, Georgia. The State
alleged that the films were obscene under the standards set forth
in Georgia Code Ann. § 26-2101. [ Footnote 2/1 ] The trial court denied injunctive relief,
holding that, even though the films could be considered obscene,
their commercial presentation could not constitutionally be barred
in the absence of proof that they were shown to minors or
unconsenting adults. Reversing, the Supreme Court of Georgia found
the films obscene, and held that the care taken to avoid exposure
to minors and unconsenting adults was without constitutional
significance. I The Paris Adult Theatres are two commercial cinemas, linked by a
common box office and lobby, on Peachtree Street in Atlanta,
Georgia. On December 28, 1970, investigators employed by the
Criminal Court of Fulton County entered the theaters as paying
customers and viewed each of the films which are the subject of
this action. Thereafter, two separate complaints, one for Page 413 U. S. 75 each of the two films, were filed in the Superior Court seeking
a declaration that the films were obscene and an injunction against
their continued presentation to the public. The complaints alleged
that the films were

															"a flagrant violation of Georgia Code Section 26-2101 in that
the sole and dominant theme[s] of the said motion picture film[s]
considered as a whole and applying contemporary community standards
[appeal] to the prurient interest in sex, nudity and excretion, and
that the said motion picture film[s are] utterly and absolutely
without any redeeming social value whatsoever, and [transgress]
beyond the customary limits of candor in describing and discussing
sexual matters."

															App. 20, 39.

															Although the language of the complaints roughly tracked the
language of § 26-2101, which imposes criminal penalties on persons
who knowingly distribute obscene materials, [ Footnote 2/2 ] this proceeding was not brought pursuant
to that statute. Instead, the State initiated a nonstatutory civil
proceeding to determine the obscenity of the films and to enjoin
their exhibition. While the parties waived jury trial and
stipulated that the decision of the trial court would be final on
the issue of obscenity, the State has not indicated whether it
intends to bring a criminal action under the statute in the event
that it succeeds in proving the films obscene.

															Upon the filing of the complaints, the trial court scheduled a
hearing for January 13, 1971, and entered an order temporarily
restraining the defendants from concealing, destroying, altering,
or removing the films Page 413 U. S. 76 from the jurisdiction, but not from exhibiting the films to the
public pendente lite. In addition to viewing the films at
the hearing, the trial court heard the testimony of witnesses and
admitted into evidence photographs that were stipulated to depict
accurately the facade of the theater. The witnesses testified that
the exterior of the theater was adorned with prominent signs
reading "Adults Only," "You Must Be 21 and Able to Prove It," and
"If the Nude Body Offends You, Do Not Enter." Nothing on the
outside of the theater described the films with specificity. Nor
were pictures displayed on the outside of the theater to draw the
attention of passersby to the contents of the films. The admission
charge to the theaters was $3. The trial court heard no evidence
that minors had ever entered the theater, but also heard no
evidence that petitioners had enforced a systematic policy of
screening out minors (apart from the posting of the notices
referred to above).

															On the basis of the evidence submitted, the trial court
concluded that the films could fairly be considered obscene,
"[a]ssuming that obscenity is established by a finding that the
actors cavorted about in the nude indiscriminately," but held,
nonetheless, that

															"the display of these films in a commercial theatre, when
surrounded by requisite notice to the public of their nature and by
reasonable protection against the exposure of these films to
minors, is constitutionally permissible. [ Footnote 2/3 ] Page 413 U. S. 77 Since the issue did not arise in a statutory proceeding, the
trial court was not required to pass upon the constitutionality of
any state statute, on its face or as applied, in denying the
injunction sought by the State."

															The Supreme Court of Georgia unanimously reversed, reasoning
that the lower court's reliance on Stanley v. Georgia, 394 U. S. 557 (1969), was misplaced in view of our subsequent decision in United States v. Reidel, 402 U. S. 351 (1971):

															"In [ Reidel ], the Supreme Court expressly held that the
government could constitutionally prohibit the distribution of
obscene materials through the mails, even though the distribution
be limited to willing recipients who state that they are adults,
and, further, that the constitutional right of a person to possess
obscene material in the privacy of his own home, as expressed in
the Stanley case, does not carry with it the right to sell
and deliver such material. . . . Those who choose to pass through
the front door of the defendant's theater and purchase a ticket to
view the films and who certify thereby that they are more than 21
years of age are willing recipients of the material in the same
legal sense as were those in the Reidel case, who, after
reading the newspaper advertisements of the material, mailed an
order to the defendant accepting his solicitation to sell them the
obscene booklet there. That case clearly establishes once and for
all that the sale and delivery of obscene material to willing
adults is not Page 413 U. S. 78 protected under the first amendment."

															228 Ga. 343, 346, 185 S.E.2d
768 , 769-770 (1971). The decision of the Georgia Supreme Court
rested squarely on its conclusion that the State could
constitutionally suppress these films even if they were displayed
only to persons over the age of 21 who were aware of the nature of
their contents and who had consented to viewing them. For the
reasons set forth in this opinion, I am convinced of the invalidity
of that conclusion of law, and I would therefore vacate the
judgment of the Georgia Supreme Court. I have no occasion to
consider the extent of state power to regulate the distribution of
sexually oriented materials to juveniles or to unconsenting adults.
Nor am I required, for the purposes of this review, to consider
whether or not these petitioners had, in fact, taken precautions to
avoid exposure of films to minors or unconsenting adults. II In Roth v. United States, 354 U.
S. 476 (1957), the Court held that obscenity, although
expression, falls outside the area of speech or press
constitutionally protected under the First and Fourteenth
Amendments against state or federal infringement. But at the same
time we emphasized in Roth that "sex and obscenity are not
synonymous," id. at 354 U. S. 487 ,
and that matter which is sexually oriented but not obscene is fully
protected by the Constitution. For we recognized that

															"[s]ex, a great and mysterious motive force in human life, has
indisputably been a subject of absorbing interest to mankind
through the ages; it is one of the vital problems of human interest
and public concern." Ibid. [ Footnote 2/4 ] Roth rested, in Page 413 U. S. 79 other words, on what has been termed a two-level approach to the
question of obscenity. [ Footnote
2/5 ] While much criticized, [ Footnote 2/6 ] that approach has been endorsed by all but
two members of this Court who have addressed the question since Roth. Yet our efforts to implement that approach
demonstrate that agreement on the existence of something called
"obscenity" is still a long and painful step from agreement on a
workable definition of the term.

															Recognizing that "the freedoms of expression . . . are
vulnerable to gravely damaging yet barely visible encroachments," Bantam Books, Inc. v. Sullivan, 372 U. S.
58 , 372 U. S. 66 (1963), we have demanded that "sensitive tools" be used to carry
out the "separation of legitimate from illegitimate speech." Speiser v. Randall, 357 U. S. 513 , 357 U. S. 525 (1958). The essence of our problem in the obscenity area is that we
have been unable to provide "sensitive tools" to separate obscenity
from other sexually oriented but constitutionally protected
speech, Page 413 U. S. 80 so that efforts to suppress the former do not spill over into
the suppression of the latter. The attempt, as the late Mr. Justice
Harlan observed, has only "produced a variety of views among the
members of the Court unmatched in any other course of
constitutional adjudication." Interstate Circuit, Inc. v.
Dallas, 390 U. S. 676 , 390 U. S.
704 -705 (1968) (separate opinion).

															To be sure, five members of the Court did agree in Roth that obscenity could be determined by asking

															"whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole
appeals to prurient interest."

															354 U.S. at 354 U. S. 489 .
But agreement on that test -- achieved in the abstract and without
reference to the particular material before the Court, see
id. at 354 U. S. 481 n. 8 -- was, to say the least, short-lived. By 1967, the following
views had emerged: Mr. Justice Black and MR. JUSTICE DOUGLAS
consistently maintained that government is wholly powerless to
regulate any sexually oriented matter on the ground of its
obscenity. See, e.g., Ginzburg v. United States, 383 U. S. 463 , 383 U. S. 476 , 383 U. S. 482 (1966) (dissenting opinions); Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 196 (1964) (concurring opinion); Roth v. United States, supra, at 354 U. S. 508 (dissenting opinion). Mr. Justice Harlan, on the other hand,
believed that the Federal Government in the exercise of its
enumerated powers could control the distribution of "hard core"
pornography, while the States were afforded more latitude to

															"[ban] any material which, taken as a whole, has been reasonably
found in state judicial proceedings to treat with sex in a
fundamentally offensive manner, under rationally established
criteria for judging such material." Jacobellis v. Ohio, supra, at 378 U. S. 204 (dissenting opinion). See also, e.g., Ginzburg v. United
States, supra, at 383 U. S. 493 (dissenting opinion); A Quantity of Books v. Kansas, 378 U. S. 205 , 378 U. S. 215 (1964) (dissenting opinion joined by Clark, J.); Roth,
supra, at 354 U. S.
496 Page 413 U. S. 81 (separate opinion). MR. JUSTICE STEWART regarded "hard core"
pornography as the limit of both federal and state power. See,
e.g., Ginzburg v. United States, supra, at 383 U. S. 497 (dissenting opinion); Jacobellis v. Ohio, supra, at 378 U. S. 197 (concurring opinion).

															The view that, until today, enjoyed the most, but not majority,
support was an interpretation of Roth (and not, as the
Court suggests, a veering "sharply away from the Roth concept" and the articulation of "a new test of obscenity," Miller v. California, ante at 413 U. S. 21 )
adopted by Mr. Chief Justice Warren, Mr. Justice Fortas, and the
author of this opinion in Memoirs v. Massachusetts, 383 U. S. 413 (1966). We expressed the view that Federal or State Governments
could control the distribution of material where

															"three elements . . . coalesce: it must be established that (a)
the dominant theme of the material taken as a whole appeals to a
prurient interest in sex; (b) the material is patently offensive
because it affronts contemporary community standards relating to
the description or representation of sexual matters; and (c) the
material is utterly without redeeming social value." Id. at 383 U. S. 418 .
Even this formulation, however, concealed differences of opinion. Compare Jacobellis v. Ohio, supra, at 378 U. S.
192 -195 (BRENNAN, J., joined by Goldberg, J.) (community
standards national), with id. at 378 U. S.
200 -201 (Warren, C.J., joined by Clark, J., dissenting)
(community standards local). [ Footnote
2/7 ] Moreover, it did not provide a definition covering all
situations. See Mishkin v. New York, 383 U.
S. 502 (1966) Page 413 U. S. 82 (prurient appeal defined in terms of a deviant sexual group); Ginzburg v. United States, supra, ("pandering" probative
evidence of obscenity in close cases). See also Ginsberg v. New
York, 390 U. S. 629 (1968) (obscenity for juveniles). Nor, finally, did it ever command
a majority of the Court. Aside from the other views described
above, Mr. Justice Clark believed that "social importance" could
only "be considered together with evidence that the material in
question appeals to prurient interest and is patently offensive." Memoirs v. Massachusetts, supra, at 383 U. S. 445 (dissenting opinion). Similarly, MR. JUSTICE WHITE regarded "a
publication to be obscene if its predominant theme appeals to the
prurient interest in a manner exceeding customary limits of
candor," id. at 383 U. S.
460 -461 (dissenting opinion), and regarded

															"'social importance' . . . not [as] an independent test of
obscenity, but [as] relevant only to determining the predominant
prurient interest of the material. . . ." Id. at 383 U. S.
462 .

															In the face of this divergence of opinion the Court began the
practice in Redrup v. New York, 386 U.
S. 767 (1967), of per curiam reversals of convictions
for the dissemination of materials that, at least five members of
the Court, applying their separate tests, deemed not to be obscene.
[ Footnote 2/8 ] This approach capped
the attempt in Page 413 U. S. 83 Roth to separate all forms of sexually oriented
expression into two categories -- the one subject to full
governmental suppression and the other beyond the reach of
governmental regulation to the same extent as any other protected
form of speech or press. Today a majority of the Court offers a
slightly altered formulation of the basic Roth test, while
leaving entirely unchanged the underlying approach. III Our experience with the Roth approach has certainly
taught us that the outright suppression of obscenity cannot be
reconciled with the fundamental principles of the First and
Fourteenth Amendments. For we have failed to formulate a standard
that sharply distinguishes protected from unprotected speech, and
out of necessity, we have resorted to the Redrup approach,
which resolves cases as between the parties, but offers only the
most obscure guidance to legislation, adjudication by other courts,
and primary conduct. By disposing of cases through summary reversal
or denial of certiorari, we have deliberately and effectively
obscured the rationale underlying the decisions. It comes as no
surprise that judicial attempts to follow our lead conscientiously
have often ended in hopeless confusion.

															Of course, the vagueness problem would be largely of our own
creation if it stemmed primarily from our Page 413 U. S. 84 failure to reach a consensus on any one standard. But, after 16
years of experimentation and debate, I am reluctantly forced to the
conclusion that none of the available formulas, including the one
announced today, can reduce the vagueness to a tolerable level
while at the same time striking an acceptable balance between the
protections of the First and Fourteenth Amendments, on the one
hand, and, on the other, the asserted state interest in regulating
the dissemination of certain sexually oriented materials. Any
effort to draw a constitutionally acceptable boundary on state
power must resort to such indefinite concepts as "prurient
interest," "patent offensiveness," "serious literary value," and
the like. The meaning of these concepts necessarily varies with the
experience, outlook, and even idiosyncrasies of the person defining
them. Although we have assumed that obscenity does exist and that
we "know it when [we] see it," Jacobellis v. Ohio, supra, at 378 U. S. 197 (STEWART, J., concurring), we are manifestly unable to describe it
in advance except by reference to concepts so elusive that they
fail to distinguish clearly between protected and unprotected
speech.

															We have more than once previously acknowledged that
"constitutionally protected expression . . . is often separated
from obscenity only by a dim and uncertain line." Bantam Books,
Inc. v. Sullivan, 372 U.S. at 372 U. S. 66 . See also, e.g., Mishkin v. New York, supra, at 383 U. S. 511 .
Added to the "perhaps inherent residual vagueness" of each of the
current multitude of standards, Ginzburg v. United States,
supra, at 383 U. S. 475 n.19, is the further complication that the obscenity of any
particular item may depend upon nuances of presentation and the
context of its dissemination. See ibid. Redrup itself suggested that obtrusive exposure to unwilling individuals,
distribution to juveniles, and "pandering" may also bear upon the
determination of Page 413 U. S. 85 obscenity. See Redrup v. New York, supra, at 386 U. S. 769 .
As Mr. Chief Justice Warren stated in a related vein, obscenity is
a function of the circumstances of its dissemination:

															"It is not the book that is on trial; it is a person. The
conduct of the defendant is the central issue, not the obscenity of
a book or picture. The nature of the materials is, of course,
relevant as an attribute of the defendant's conduct, but the
materials are thus placed in context from which they draw color and
character." Roth, 354 U.S. at 354 U. S. 495 (concurring opinion). See also, e.g., Jacobellis v. Ohio,
supra, at 378 U. S. 201 (dissenting opinion); Kingsley Books, Inc. v. Brown, 354 U. S. 436 , 354 U. S.
445 -446 (1957) (dissenting opinion). I need hardly point
out that the factors which must be taken into account are
judgmental and can only be applied on "a case-by-case,
sight-by-sight" basis. Mishkin v. New York, supra, at 383 U. S. 516 (Black, J., dissenting). These considerations suggest that no one
definition, no matter how precisely or narrowly drawn, can possibly
suffice for all situations, or carve out fully suppressible
expression from all media without also creating a substantial risk
of encroachment upon the guarantees of the Due Process Clause and
the First Amendment. [ Footnote
2/9 ] Page 413 U. S. 86 The vagueness of the standards in the obscenity area produces a
number of separate problems, and any improvement must rest on an
understanding that the problems are to some extent distinct. First,
a vague statute fails to provide adequate notice to persons who are
engaged in the type of conduct that the statute could be thought to
proscribe. The Due Process Clause of the Fourteenth Amendment
requires that all criminal laws provide fair notice of "what the
State commands or forbids." Lanzetta v. New Jersey, 30 U. S. 451 , 30 U. S. 453 (1939); Connally v. General Construction Co., 269 U.
S. 385 (1926). In the service of this general principle,
we have repeatedly held that the definition of obscenity must
provide adequate notice of exactly what Page 413 U. S. 87 is prohibited from dissemination. See, e.g., Rabe v.
Washington, 405 U. S. 313 (1972); Interstate Circuit, Inc. v. Dallas, 390 U.
S. 676 (1968); Winters v. New York, 333 U. S. 507 (1948). While various tests have been upheld under the Due Process
Clause, see Ginsberg v. New York, 390 U.S. at 390 U. S. 643 ; Mishkin v. New York, 383 U.S. at 383 U. S.
506 -507; Roth v. United States, 354 U.S. at 354 U. S.
491 -492, I have grave doubts that any of those test
could be sustained today. For I know of no satisfactory answer to
the assertion by Mr. Justice Black, "after the fourteen separate
opinions handed down" in the trilogy of cases decided in 1966,
that

															"no person, not even the most learned judge, much less a layman,
is capable of knowing in advance of an ultimate decision in his
particular case by this Court whether certain material comes within
the area of 'obscenity.' . . ." Ginzburg v. United States, 383 U.S. at 383 U. S.
480 -481 (dissenting opinion). See also the
statement of Mr. Justice Harlan in Interstate Circuit, Inc. v.
Dallas, supra, at 390 U. S. 707 (separate opinion). As Mr. Chief Justice Warren pointed out,

															"[t]he constitutional requirement of definiteness is violated by
a criminal statute that fails to give a person of ordinary
intelligence fair notice that his contemplated conduct is forbidden
by the statute. The underlying principle is that no man shall be
held criminally responsible for conduct which he could not
reasonably understand to be proscribed." United States v. Harriss, 347 U.
S. 612 , 347 U. S. 617 (1954). In this context, even the most painstaking efforts to
determine in advance whether certain sexually oriented expression
is obscene must inevitably prove unavailing. For the insufficiency
of the notice compels persons to guess not only whether their
conduct is covered by a criminal statute, but also whether their
conduct falls within the constitutionally permissible reach of the
statute. The resulting level of uncertainty is utterly intolerable,
not alone because it makes Page 413 U. S. 88 "[b]ookselling . . . a hazardous profession," Ginsberg v.
New York, supra, at 390 U. S. 674 (Fortas, J., dissenting), but as well because it invites arbitrary
and erratic enforcement of the law. See, e.g., Papachristou v.
City of Jacksonville, 405 U. S. 156 (1972); Gregory v. City of Chicago, 394 U.
S. 111 , 394 U. S. 120 (1969) (Black, J., concurring); Niemotko v. Maryland, 340 U. S. 268 (1951); Cantwell v. Connecticut, 310 U.
S. 296 , 310 U. S. 308 (1940); Thornhill v. Alabama, 310 U. S.
88 (1940).

															In addition to problems that arise when any criminal statute
fails to afford fair notice of what it forbids, a vague statute in
the areas of speech and press creates a second level of difficulty.
We have indicated that

															"stricter standards of permissible statutory vagueness may be
applied to a statute having a potentially inhibiting effect on
speech; a man may the less be required to act at his peril here,
because the free dissemination of ideas may be the loser. [ Footnote 2/10 ]" Smith v. California, 361 U. S. 147 , 361 U. S. 151 (1959). That proposition draws its strength from our recognition
that

															"[t]he fundamental freedoms of speech and press have contributed
greatly to the development and wellbeing of our free society, and
are indispensable to its continued growth. Ceaseless vigilance is
the watchword to prevent their erosion by Congress or by the
States. The door barring federal and state intrusion into this area
cannot be left ajar. . . ." Roth, supra, at 354 U. S. 488 .
[ Footnote 2/11 ] Page 413 U. S. 89 To implement this general principle, and recognizing the
inherent vagueness of any definition of obscenity, we have held
that the definition of obscenity must be drawn as narrowly as
possible, so as to minimize the interference with protected
expression. Thus, in Roth, we rejected the test of Regina v. Hicklin, [1868] L.R. 3 Q.B. 360, that "[judged]
obscenity by the effect of isolated passages upon the most
susceptible persons." 354 U.S. at 354 U. S. 489 .
That test, we held in Roth, "might well encompass material
legitimately treating with sex. . . ." Ibid. Cf.
Mishkin v. New York, supra, at 383 U. S. 509 .
And we have supplemented the Roth standard with additional
tests in an effort to hold in check the corrosive effect of
vagueness on the guarantees of the First Amendment. [ Footnote 2/12 ] We have held, for example,
that "a State is not free to adopt whatever procedures it
pleases Page 413 U. S. 90 for dealing with obscenity. . . ." Marcus v. Search
Warrant, 367 U. S. 717 , 367 U. S. 731 (1961).

															"Rather, the First Amendment requires that procedures be
incorporated that 'ensure against the curtailment of
constitutionally protected expression. . . .'" Blount v. Rizzi, 400 U. S. 410 , 400 U. S. 416 (1971), quoting from Bantam Books, Inc., v. Sullivan, 372
U.S. at 372 U. S. 66 . See generally Rizzi, supra, at 400 U. S. 417 ; United States v. Thirty-seven Photographs, 402 U.
S. 363 , 402 U. S.
367 -375 (1971); Lee Art Theatre, Inc. v.
Virginia, 392 U. S. 636 (1968); Freedman v. Maryland, 380 U. S.
51 , 380 U. S. 58 -60
(1965); A Quantity of Books v. Kansas, 378 U.
S. 205 (1964) (plurality opinion).

															Similarly, we have held that a State cannot impose criminal
sanctions for the possession of obscene material absent proof that
the possessor had knowledge of the contents of the material. Smith v. California, supra. "Proof of scienter "
is necessary

															"to avoid the hazard of self-censorship of constitutionally
protected material and to compensate for the ambiguities inherent
in the definition of obscenity." Mishkin v. New York, supra, at 383 U. S. 511 ; Ginsberg v. New York, supra, at 390 U. S.
644 -645. In short,

															"[t]he objectionable quality of vagueness and overbreadth . . .
[is] the danger of tolerating, in the area of First Amendment
freedoms, the existence of a penal statute susceptible of sweeping
and improper application. Cf. Marcus v. Search Warrant, 367 U. S.
717 , 367 U. S. 733 . These
freedoms are delicate and vulnerable, as well as supremely precious
in our society. The threat of sanctions may deter their exercise
almost as potently as the actual application of sanctions. Cf.
Smith v. California, [361 U.S.], at 361 U. S.
151 -154; Speiser v. Randall, 357 U. S.
513 , 357 U. S. 526 . Because First
Amendment freedoms need breathing space to survive, government Page 413 U. S. 91 may regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S.
311 ." NAACP v. Button, 371 U. S. 415 , 371 U. S. 432 433 (1963).

															The problems of fair notice and chilling protected speech are
very grave standing alone. But it does not detract from their
importance to recognize that a vague statute in this area creates a
third, although admittedly more subtle, set of problems. These
problems concern the institutional stress that inevitably results
where the line separating protected from unprotected speech is
excessively vague. In Roth, we conceded that "there may be
marginal cases in which it is difficult to determine the side of
the line on which a particular fact situation falls. . . ." 354
U.S. at 354 U. S.
491 -492. Our subsequent experience demonstrates that
almost every case is "marginal." And since the "margin" marks the
point of separation between protected and unprotected speech, we
are left with a system in which almost every obscenity case
presents a constitutional question of exceptional difficulty.

															"The suppression of a particular writing or other tangible form
of expression is . . . an individual matter, and in the nature of
things every such suppression raises an individual constitutional
problem, in which a reviewing court must determine for itself
whether the attacked expression is suppressable within
constitutional standards." Roth, supra, at 354 U. S. 497 (separate opinion of Harlan, J.).

															Examining the rationale, both explicit and implicit, of our
vagueness decisions, one commentator has viewed these decisions as
an attempt by the Court to establish an "insulating buffer zone of
added protection at the peripheries of several of the Bill of
Rights freedoms." Note, The Void-for-Vagueness Doctrine in the
Supreme Court, 109 U.Pa.L.Rev. 67, 75 (1960). The buffer zone
enables the Court to fend off legislative attempts Page 413 U. S. 92 "to pass to the courts -- and ultimately to the Supreme Court --
the awesome task of making case by case at once the criminal and
the constitutional law." Id. at 81. Thus,

															[b]ecause of the Court's limited power to reexamine fact on a
cold record, what appears to be going on in the administration of
the law must be forced, by restrictive procedures, to reflect what
is really going on; and because of the impossibility, through sheer
volume of cases, of the Court's effectively policing law
administration case by case, those procedures must be framed to
assure, as well as procedures can assure, a certain overall probability of regularity. Id. at 89 (emphasis in original).

															As a result of our failure to define standards with predictable
application to any given piece of material, there is no probability
of regularity in obscenity decisions by state and lower federal
courts. That is not to say that these courts have performed badly
in this area or paid insufficient attention to the principles we
have established. The problem is, rather, that one cannot say with
certainty that material is obscene until at least five members of
this Court, applying inevitably obscure standards, have pronounced
it so. The number of obscenity cases on our docket gives ample
testimony to the burden that has been placed upon this Court.

															But the sheer number of the cases does not define the full
extent of the institutional problem. For, quite apart from the
number of cases involved and the need to make a fresh
constitutional determination in each case, we are tied to the
"absurd business of perusing and viewing the miserable stuff that
pours into the Court. . . ." Interstate Circuit, Inc. v.
Dallas, 390 U.S. at 390 U. S. 707 (separate opinion of Harlan, J.). While the material may have
varying degrees of social importance, Page 413 U. S. 93 it is hardly a source of edification to the members of this
Court who are compelled to view it before passing on its obscenity. Cf. Mishkin v. New York, 383 U.S. at 383 U. S.
516 -517 (Black, J., dissenting).

															Moreover, we have managed the burden of deciding scores of
obscenity cases by relying on per curiam reversals or denials of
certiorari -- a practice which conceals the rationale of decision
and gives at least the appearance of arbitrary action by this
Court. See Bloss v. Dykema, 398 U.
S. 278 (1970) (Harlan, J., dissenting). More important,
no less than the procedural schemes struck down in such cases as Blount v. Rizzi, supra, and Freedman v. Maryland,
supra, the practice effectively censors protected expression
by leaving lower court determinations of obscenity intact even
though the status of the allegedly obscene material is entirely
unsettled until final review here. In addition, the uncertainty of
the standards creates a continuing source of tension between state
and federal courts, since the need for an independent determination
by this Court seems to render superfluous even the most
conscientious analysis by state tribunals. And our inability to
justify our decisions with a persuasive rationale -- or indeed, any
rationale at all -- necessarily creates the impression that we are
merely second-guessing state court judges.

															The severe problems arising from the lack of fair notice, from
the chill on protected expression, and from the stress imposed on
the state and federal judicial machinery persuade me that a
significant change in direction is urgently required. I turn,
therefore, to the alternatives that are now open. IV 1. The approach requiring the smallest deviation from our
present course would be to draw a new line between protected and
unprotected speech, still permitting Page 413 U. S. 94 the States to suppress all material on the unprotected side of
the line. In my view, clarity cannot be obtained pursuant to this
approach except by drawing a line that resolves all doubt in favor
of state power and against the guarantees of the First Amendment.
We could hold, for example, that any depiction or description of
human sexual organs, irrespective of the manner or purpose of the
portrayal, is outside the protection of the First Amendment, and
therefore open to suppression by the States. That formula would, no
doubt, offer much fairer notice of the reach of any state statute
drawn at the boundary of the State's constitutional power. And it
would also, in all likelihood, give rise to a substantial
probability of regularity in most judicial determinations under the
standard. But such a standard would be appallingly overbroad,
permitting the suppression of a vast range of literary, scientific,
and artistic masterpieces. Neither the First Amendment nor any free
community could possibly tolerate such a standard. Yet, short of
that extreme, it is hard to see how any choice of words could
reduce the vagueness problem to tolerable proportions, so long as
we remain committed to the view that some class of materials is
subject to outright suppression by the State.

															2. The alternative adopted by the Court today recognizes that a
prohibition against any depiction or description of human sexual
organs could not be reconciled with the guarantees of the First
Amendment. But the Court does retain the view that certain sexually
oriented material can be considered obscene, and therefore
unprotected by the First and Fourteenth Amendments. To describe
that unprotected class of expression, the Court adopts a
restatement of the Roth-Memoirs definition of
obscenity:

															"The basic guidelines for the trier of fact must be: (a) whether
'the average person, applying contemporary community standards,'
would find that the Page 413 U. S. 95 work, taken as a whole, appeals to the prurient interest . . .
(b) whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state
law, and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value." Miller v. California, ante at 413 U. S. 24 . In
apparent illustration of "sexual conduct," as that term is used in
the test's second element, the Court identifies "(a) Patently
offensive representations or descriptions of ultimate sexual acts,
normal or perverted, actual or simulated," and "(b) Patently
offensive representations or descriptions of masturbation,
excretory functions, and lewd exhibition of the genitals." Id. at 413 U. S.
25 .

															The differences between this formulation and the three-pronged Memoirs test are, for the most part, academic. [ Footnote 2/13 ] The first element of the
Court's test is virtually identical to the Memoirs requirement that "the dominant theme of the material taken as a
whole [must appeal] to a prurient interest in sex." 383 U.S. at 383 U. S. 418 .
Whereas the second prong of the Memoirs test demanded that
the material be Page 413 U. S. 96 "patently offensive because it affronts contemporary community
standards relating to the description or representation of sexual
matters," ibid., the test adopted today requires that the
material describe, "in a patently offensive way, sexual conduct
specifically defined by the applicable state law." Miller v.
California, ante at 413 U. S. 24 .
The third component of the Memoirs test is that the
material must be "utterly without redeeming social value." 383 U.S.
at 383 U. S. 418 .
The Court's rephrasing requires that the work, taken as a whole,
must be proved to lack "serious literary, artistic, political, or
scientific value." Miller, ante at 413 U. S.
24 .

															The Court evidently recognizes that difficulties with the Roth approach necessitate a significant change of
direction. But the Court does not describe its understanding of
those difficulties, nor does it indicate how the restatement of the Memoirs test is in any way responsive to the problems that
have arisen. In my view, the restatement leaves unresolved the very
difficulties that compel our rejection of the underlying Roth approach, while at the same time contributing
substantial difficulties of its own. The modification of the Memoirs test may prove sufficient to jeopardize the
analytic underpinnings of the entire scheme. And today's
restatement will likely have the effect, whether or not intended,
of permitting far more sweeping suppression of sexually oriented
expression, including expression that would almost surely be held
protected under our current formulation.

															Although the Court's restatement substantially tracks the
three-part test announced in Memoirs v. Massachusetts,
supra, it does purport to modify the "social value" component
of the test. Instead of requiring, as did Roth and Memoirs, that state suppression be limited to materials
utterly lacking in social value, the Court today Page 413 U. S. 97 permits suppression if the government can prove that the
materials lack " serious literary, artistic, political or
scientific value." But the definition of "obscenity" as expression
utterly lacking in social importance is the key to the conceptual
basis of Roth and our subsequent opinions. In Roth, we held that certain expression is obscene, and thus
outside the protection of the First Amendment, precisely because it lacks even the slightest redeeming social
value. See Roth v. United States, 354 U.S. at 354 U. S.
484 -485; [ Footnote
2/14 ] Jacobellis v. Ohio, 378 U.S. at 378 U. S. 191 ; Zeitlin v. Arnebergh, 59 Cal. 2d
901 , 920, 383 P.2d 152, 165; cf. New York Times Co. v.
Sullivan, 376 U. S. 254 (1964); Garrison v. Louisiana, 379 U. S.
64 , 379 U. S. 75 (1964); Chaplinsky v. New Hampshire, 315 U.
S. 568 , 315 U. S. 572 (1942); Kalven, The Metaphysics of the Law of Obscenity, 1960
Sup.Ct.Rev. 1. The Court's approach necessarily assumes that some
works will be deemed obscene -- even though they clearly have some social value -- because the State was able to prove
that the value, measured by some unspecified standard, was not
sufficiently "serious" to warrant constitutional protection. That
result is not merely inconsistent with our holding in Roth; it is nothing less than a rejection of the
fundamental First Amendment premises and rationale of the Roth opinion and an invitation to widespread suppression
of sexually oriented speech. Before today, the protections of the
First Amendment have never been thought limited to expressions of serious literary or political value. See Gooding v.
Wilson, 405 U. S. 518 Page 413 U. S. 98 (1972); Cohen v. California, 403 U. S.
15 , 403 U. S. 25 -26
(1971); Terminiello v. Chicago, 337 U. S.
1 , 337 U. S. 4 -5
(1949).

															Although the Court concedes that " Roth presumed obscenity' to be `utterly without redeeming social
importance,'" it argues that Memoirs produced "a drastically altered test that called on the prosecution to
prove a negative, i.e., that the material was 'utterly
without redeeming social value' -- a burden virtually impossible to
discharge under our criminal standards of proof. [ Footnote 2/15 ]"

															One should hardly need to point out that under the third
component of the Court's test the prosecution is still required to
"prove a negative" -- i.e., that the material lacks
serious literary, artistic, political, or scientific value. Whether
it will be easier to prove that material lacks "serious" value than
to prove that it lacks any value at all remains, of course, to be
seen.

															In any case, even if the Court's approach left undamaged the
conceptual framework of Roth, and even if it clearly
barred the suppression of works with at least some social value, I
would nevertheless be compelled to reject it. For it is beyond
dispute that the approach can have no ameliorative impact on the
cluster of problems that grow out of the vagueness of our current
standards. Indeed, even the Court makes no argument that the
reformulation will provide fairer notice to booksellers, theater
owners, and the reading and viewing public. Nor does the Court
contend that the approach will provide clearer guidance to law
enforcement officials or reduce the chill on protected expression.
Nor, finally, does the Court suggest that the approach will
mitigate to the slightest degree the institutional problems that
have plagued this Court and the state and federal judiciary as a
direct result of the uncertainty inherent in any definition of
obscenity. Page 413 U. S. 99 Of course, the Court's restated Roth test does limit
the definition of obscenity to depictions of physical conduct and
explicit sexual acts. And that limitation may seem, at first
glance, a welcome and clarifying addition to the Roth-Memoirs formula. But just as the agreement in Roth on an abstract definition of obscenity gave little
hint of the extreme difficulty that was to follow in attempting to
apply that definition to specific material, the mere formulation of
a "physical conduct" test is no assurance that it can be applied
with any greater facility. The Court does not indicate how it would
apply its test to the materials involved in Miller v.
California, supra, and we can only speculate as to its
application. But even a confirmed optimist could find little
realistic comfort in the adoption of such a test. Indeed, the
valiant attempt of one lower federal court to draw the
constitutional line at depictions of explicit sexual conduct seems
to belie any suggestion that this approach marks the road to
clarity. [ Footnote 2/16 ] The
Court surely demonstrates little sensitivity to our own
institutional problems, much less the other vagueness-related
difficulties, in establishing a system that requires us to consider
whether a description of human genitals is sufficiently "lewd" to
deprive it of constitutional protection; whether a sexual act is
"ultimate"; whether the conduct depicted in materials before us
fits within one of the categories of conduct whose depiction the
State and Federal Governments have attempted to suppress; and a
host of equally pointless inquiries. In addition, adoption of such
a test does not, presumably, obviate the need for consideration of
the Page 413 U. S. 100 nuances of presentation of sexually oriented material, yet it
hardly clarifies the application of those opaque but important
factors.

															If the application of the "physical conduct" test to pictorial
material is fraught with difficulty, its application to textual
material carries the potential for extraordinary abuse. Surely we
have passed the point where the mere written description of sexual
conduct is deprived of First Amendment protection. Yet the test
offers no guidance to us, or anyone else, in determining which
written descriptions of sexual conduct are protected, and which are
not.

															Ultimately, the reformulation must fail because it still leaves
in this Court the responsibility of determining in each case
whether the materials are protected by the First Amendment. The
Court concedes that, even under its restated formulation, the First
Amendment interests at stake require "appellate courts to conduct
an independent review of constitutional claims when necessary," Miller v. California, ante at 413 U. S. 25 ,
citing Mr. Justice Harlan's opinion in Roth, where he
stated,

															"I do not understand how the Court can resolve the
constitutional problems now before it without making its own
independent judgment upon the character of the material upon which
these convictions were based."

															354 U.S. at 354 U. S. 498 .
Thus, the Court's new formulation will not relieve us of "the
awesome task of making case by case at once the criminal and the
constitutional law." [ Footnote
2/17 ] And the careful efforts of state and lower federal courts
to apply the standard will remain an essentially pointless
exercise, in view of the need for an ultimate decision by this
Court. In addition, since the status of sexually oriented material
will necessarily remain in doubt until final Page 413 U. S. 101 decision by this Court, the new approach will not diminish the
chill on protected expression that derives from the uncertainty of
the underlying standard. I am convinced that a definition of
obscenity in terms of physical conduct cannot provide sufficient
clarity to afford fair notice, to avoid a chill on protected
expression, and to minimize the institutional stress, so long as
that definition is used to justify the outright suppression of any
material that is asserted to fall within its terms.

															3. I have also considered the possibility of reducing our own
role, and the role of appellate courts generally, in determining
whether particular matter is obscene. Thus, we might conclude that
juries are best suited to determine obscenity vel non, and
that jury verdicts in this area should not be set aside except in
cases of extreme departure from prevailing standards. Or, more
generally, we might adopt the position that, where a lower federal
or state court has conscientiously applied the constitutional
standard, its finding of obscenity will be no more vulnerable to
reversal by this Court than any finding of fact. Cf. Interstate
Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S.
706 -707 (separate opinion of Harlan, J.). While the
point was not clearly resolved prior to our decision in Redrup
v. New York, 386 U. S. 767 (1967), [ Footnote 2/18 ] it is
implicit in that decision that the First Amendment requires Page 413 U. S. 102 an independent review by appellate courts of the constitutional
fact of obscenity. [ Footnote
2/19 ] That result is required by principles applicable to the
obscenity issue no less than to any other area involving free
expression, see, e.g., New York Times Co. v. Sullivan, 376
U.S. at 376 U. S.
284 -285, or other constitutional right. [ Footnote 2/20 ] In any event, even if the
Constitution would permit us to refrain from judging for ourselves
the alleged obscenity of particular materials, that approach would
solve at best only a small part of our problem. For while it would
mitigate the institutional stress produced by the Roth approach, it
would neither offer nor produce any cure for the other vices of
vagueness. Far from providing a clearer guide to permissible
primary conduct, the approach would inevitably lead to even greater
uncertainty and the consequent due process problems of fair notice.
And the approach would expose much protected, sexually oriented
expression to the vagaries of jury determinations. Cf. Herndon
v. Lowry, 301 U. S. 242 , 301 U. S. 263 (1937). Plainly, the institutional gain would be more than offset
by the unprecedented infringement of First Amendment rights.

															4. Finally, I have considered the view, urged so forcefully
since 1957 by our Brothers Black and DOUGLAS, that the First
Amendment bars the suppression of any sexually oriented expression.
That position would effect a sharp reduction, although perhaps not
a total elimination, of the uncertainty that surrounds our
current Page 413 U. S. 103 approach. Nevertheless, I am convinced that it would achieve
that desirable goal only by stripping the States of power to an
extent that cannot be justified by the commands of the
Constitution, at least so long as there is available an alternative
approach that strikes a better balance between the guarantee of
free expression and the States' legitimate interests. V Our experience since Roth requires us not only to
abandon the effort to pick out obscene materials on a case-by-case
basis, but also to reconsider a fundamental postulate of Roth: that there exists a definable class of sexually
oriented expression that may be totally suppressed by the Federal
and State Governments. Assuming that such a class of expression
does in fact, exist, [ Footnote
2/21 ] I am forced to conclude that the concept of "obscenity"
cannot be defined with sufficient specificity and clarity to
provide fair notice to persons who create and distribute sexually
oriented materials, to prevent substantial erosion of protected
speech as a byproduct of the attempt to suppress unprotected
speech, and to avoid very costly institutional harms. Given these
inevitable side effects of state efforts to suppress what is
assumed to be unprotected speech, we must scrutinize with
care the state interest that is asserted to justify the
suppression. For, in the absence of some very substantial interest
in suppressing such speech, we can hardly condone the ill effects
that seem to flow inevitably from the effort. [ Footnote 2/22 ] Page 413 U. S. 104 Obscenity laws have a long history in this country. Most of the
States that had ratified the Constitution by 1792 punished the
related crime of blasphemy or profanity despite the guarantees of
free expression in their constitutions, and Massachusetts expressly
prohibited the

															"Composing, Writing, Printing or Publishing, of any Filthy
Obscene or Prophane Song, Pamphlet, Libel or Mock-Sermon, in
Imitation or in Mimicking of Preaching, or any other part of Divine
Worship."

															Acts and Laws of Massachusetts Bay Colony (1726), Acts of
1711-1712, c. 1, p. 218. In 1815, the first reported obscenity
conviction was obtained under the common law of Pennsylvania. See Commonwealth v. Sharpless, 2 S. & R. 91. A
conviction in Massachusetts under its common law and colonial
statute followed six years later. See Commonwealth v.
Holmes, 17 Mass. 336 (1821). In 1821, Vermont passed the first
state law proscribing the publication or sale of "lewd or obscene"
material, Laws of Vermont, 1824, c. XXXII, No. 1, § 23, and federal
legislation barring the importation of similar matter appeared in
1842. See Tariff Act of 1842, § 28, 5 Stat. 566. Although
the number of early obscenity laws was small and their enforcement
exceedingly lax, the situation significantly changed after about
1870, when Federal and State Governments, mainly as a result of the
efforts Page 413 U. S. 105 of Anthony Comstock, took an active interest in the suppression
of obscenity. By the end of the 19th century, at least 30 States
had some type of General prohibition on the dissemination of
obscene materials, and by the time of our decision in Roth, no State was without some provision on the subject.
The Federal Government meanwhile had enacted no fewer than 20
obscenity laws between 1842 and 1956. See Roth v. United
States, 354 U.S. at 354 U. S.
482 -483, 354 U. S. 485 ;
Report of the Commission on Obscenity and Pornography 300-301
(1970).

															This history caused us to conclude in Roth "that the unconditional phrasing of the First Amendment [that
'Congress shall make no law . . . abridging the freedom of speech,
or of the press . . .'] was not intended to protect every
utterance."

															354 U.S. at 354 U. S. 483 .
It also caused us to hold, as numerous prior decisions of this
Court had assumed, see id. at 354 U. S. 481 ,
that obscenity could be denied the protection of the First
Amendment, and hence suppressed because it is a form of expression
"utterly without redeeming social importance," id. at 354 U. S. 484 ,
as "mirrored in the universal judgment that [it] should be
restrained. . . ." Id. at 354 U. S.
485 .

															Because we assumed -- incorrectly, as experience has proved --
that obscenity could be separated from other sexually oriented
expression without significant costs either to the First Amendment
or to the judicial machinery charged with the task of safeguarding
First Amendment freedoms, we had no occasion in Roth to
probe the asserted state interest in curtailing unprotected,
sexually oriented speech. Yet, as we have increasingly come to
appreciate the vagueness of the concept of obscenity, we have begun
to recognize and articulate the state interests at stake.
Significantly, in Redrup v. New York, 386 U.
S. 767 (1967), where we set aside findings Page 413 U. S. 106 of obscenity with regard to three sets of material, we pointed
out that

															"[i]n none of the cases was there a claim that the statute in
question reflected a specific and limited state concern for
juveniles. See Prince v. Massachusetts, 321 U. S.
158 ; cf. Butler v. Michigan, 352 U. S.
380 . In none was there any suggestion of an assault upon
individual privacy by publication in a manner so obtrusive as to
make it impossible for an unwilling individual to avoid exposure to
it. Cf. Breard v. Alexandria, 341 U. S.
622 ; Public Utilities Comm'n v. Pollak, 343 U. S.
451 . And in none was there evidence of the sort of
'pandering' which the Court found significant in Ginzburg v.
United States, 383 U. S. 463 ."

															386 U.S. at 386 U. S. 769 . See Rowan v. Post Office Dept., 397 U.
S. 728 (1970); Stanley v. Georgia, 394 U.S. at 394 U. S. 567 .
[ Footnote 2/23 ]

															The opinions in Redrup and Stanley reflected
our emerging view that the state interests in protecting children
and in protecting unconsenting adults may stand on a different
footing from the other asserted state interests. It may well be, as
one commentator has argued, that

															"exposure to [erotic material] is for some persons an intense
emotional experience. A communication of this nature, imposed upon
a person contrary to his wishes, Page 413 U. S. 107 has all the characteristics of a physical assault. . . . [And
it] constitutes an invasion of his privacy. . . . [ Footnote 2/24 ]" But cf. Cohen v. California, 403 U.S. at 403 U. S. 21 -22.
Similarly, if children are "not possessed of that full capacity for
individual choice which is the presupposition of the First
Amendment guarantees," Ginsberg v. New York, 390 U.S. at 390 U. S.
649 -650 (STEWART, J., concurring), then the State may
have a substantial interest in precluding the flow of obscene
materials even to consenting juveniles. [ Footnote 2/25 ] But cf. id. at 390 U. S.
673 -674 (Fortas, J., dissenting).

															But, whatever the strength of the state interests in protecting
juveniles and unconsenting adults from exposure to sexually
oriented materials, those interests cannot be asserted in defense
of the holding of the Georgia Supreme Court in this case. That
court assumed for the purposes of its decision that the films in
issue were exhibited only to persons over the age of 21 who viewed
them willingly and with prior knowledge of the nature of their
contents. And on that assumption, the state court held that the
films could still be suppressed. The justification for the
suppression must be found, therefore, in some independent interest
in regulating the reading and viewing habits of consenting
adults.

															At the outset, it should be noted that virtually all of the
interests that might be asserted in defense of suppression, laying
aside the special interests associated with distribution to
juveniles and unconsenting adults, were also posited in Stanley
v. Georgia, supra, where we held that the State could not make
the "mere private possession of obscene material a crime." Id. at 394 U. S. 568 .
That decision presages the conclusions I reach here today.

															In Stanley, we pointed out that "[t]here appears to
be Page 413 U. S. 108 little empirical basis for" the assertion that "exposure to
obscene materials may lead to deviant sexual behavior or crimes of
sexual violence." Id. at 394 U. S. 566 and n. 9. [ Footnote 2/26 ] In any
event, we added that

															"if the State is only concerned about printed or filmed
materials inducing antisocial conduct, we believe that in the
context of private consumption of ideas and information we should
adhere to the view that '[a]mong free men, the deterrents
ordinarily to be applied to prevent crime are education and
punishment for violations of the law. . . .' Whitney v.
California, 274 U. S. 357 , 274 U. S.
378 (1927) (Brandeis, J., concurring)." Id. at 394 U. S.
566 -567.

															Moreover, in Stanley, we rejected as "wholly
inconsistent with the philosophy of the First Amendment," id. at 394 U. S. 566 ,
the notion that there is a legitimate state concern in the "control
[of] the moral content of a person's thoughts," id. at 394 U. S. 565 ,
and we held that a State "cannot constitutionally premise
legislation on the desirability of controlling a person's private
thoughts." Id. at 394 U. S. 566 . That is not to say, of course, that a
State must remain utterly indifferent to -- and take no action
bearing on -- the morality of the community. The traditional
description Page 413 U. S. 109 of state police power does embrace the regulation of morals as
well as the health, safety, and general welfare of the citizenry. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U. S. 365 , 272 U. S. 395 (1926). And much legislation -- compulsory public education laws,
civil rights laws, even the abolition of capital punishment -- is
grounded, at least in part, on a concern with the morality of the
community. But the State's interest in regulating morality by
suppressing obscenity, while often asserted, remains essentially
unfocused and ill-defined. And, since the attempt to curtail
unprotected speech necessarily spills over into the area of
protected speech, the effort to serve this speculative interest
through the suppression of obscene material must tread heavily on
rights protected by the First Amendment.

															In Roe v. Wade, 410 U. S. 113 (1973), we held constitutionally invalid a state abortion law, even
though we were aware of

															"the sensitive and emotional nature of the abortion controversy,
of the vigorous opposing views, even among physicians, and of the
deep and seemingly absolute convictions that the subject inspires.
One's philosophy, one's experiences, one's exposure to the raw
edges of human existence, one's religious training, one's attitudes
toward life and family and their values, and the moral standards
one establishes and seeks to observe, are all likely to influence
and to color one's thinking and conclusions about abortion." Id. at 116. Like the proscription of abortions, the
effort to suppress obscenity is predicated on unprovable, although
strongly held, assumptions about human behavior, morality, sex, and
religion. [ Footnote 2/27 ] The
existence of these assumptions cannot Page 413 U. S. 110 validate a statute that substantially undermines the guarantees
of the First Amendment, any more than the existence of similar
assumptions on the issue of abortion can validate a statute that
infringes the constitutionally protected privacy interests of a
pregnant woman.

															If, as the Court today assumes, "a state legislature may . . .
act on the . . . assumption that commerce in obscene books, or
public exhibitions focused on obscene conduct, have a tendency to
exert a corrupting and debasing impact leading to antisocial
behavior," ante at 413 U. S. 63 ,
then it is hard to see how state-ordered regimentation of our minds
can ever be forestalled. For if a State, in an effort to maintain
or create a particular moral tone, may prescribe what its citizens
cannot read or cannot see, then it would seem to follow that in
pursuit of that same objective a State could decree that its
citizens must read certain books or must view certain films. Cf. United States v. Roth, 237 F.2d 796, 823 (CA2 1956)
(Frank, J., concurring). However laudable its goal -- and that is
obviously a question on which reasonable minds may differ -- the
State cannot proceed by means that violate the Constitution. The
precise point was established a half century ago in Meyer v.
Nebraska, 262 U. S. 390 (1923).

															"That the State may do much, go very far, indeed, in order to
improve the quality of its citizens, physically, mentally and
morally, is clear; but the individual has certain fundamental
rights which must be respected. The protection of the Constitution
extends to all, to those who speak other languages as well as to
those born with English on the tongue. Perhaps it would be highly
advantageous if all had ready understanding of our ordinary speech,
but this cannot be coerced by methods which conflict with the
Constitution -- a desirable end cannot be promoted by prohibited
means. " Page 413 U. S. 111 "For the welfare of his Ideal Commonwealth, Plato suggested a
law which should provide:"

															"That the wives of our guardians are to be common, and their
children are to be common, and no parent is to know his own child,
nor any child his parent. . . . The proper officers will take the
offspring of the good parents to the pen or fold, and there they
will deposit them with certain nurses who dwell in a separate
quarter; but the offspring of the inferior, or of the better when
they chance to be deformed, will be put away in some mysterious,
unknown place, as they should be."

															"In order to submerge the individual and develop ideal citizens,
Sparta assembled the males at seven into barracks and intrusted
their subsequent education and training to official guardians.
Although such measures have been deliberately approved by men of
great genius, their ideas touching the relation between individual
and State were wholly different from those upon which our
institutions rest; and it hardly will be affirmed that any
legislature could impose such restrictions upon the people of a
State without doing violence to both letter and spirit of the
Constitution." Id. at 401-402.

															Recognizing these principles, we have held that so-called
thematic obscenity -- obscenity which might persuade the viewer or
reader to engage in "obscene" conduct -- is not outside the
protection of the First Amendment:

															"It is contended that the State's action was justified because
the motion picture attractively portrays a relationship which is
contrary to the moral standards, the religious precepts, and the
legal code of its citizenry. This argument misconceives what it is
that the Constitution protects. Its guarantee is Page 413 U. S. 112 not confined to the expression of ideas that are conventional or
shared by a majority. It protects advocacy of the opinion that
adultery may sometimes be proper, no less than advocacy of
socialism or the single tax. And, in the realm of ideas, it
protects expression which is eloquent no less than that which is
unconvincing." Kingsley Pictures Corp. v. Regents, 360 U.
S. 684 , 360 U. S.
688 -689 (1959). Even a legitimate, sharply focused state
concern for the morality of the community cannot, in other words,
justify an assault on the protections of the First Amendment. Cf. Griswold v. Connecticut, 381 U.
S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S.
1 (1967). Where the state interest in regulation of
morality is vague and ill-defined, interference with the guarantees
of the First Amendment is even more difficult to justify. [ Footnote 2/28 ]

															In short, while I cannot say that the interests of the State
apart from the question of juveniles and unconsenting adults -- are
trivial or nonexistent, I am compelled to conclude that these
interests cannot justify the substantial damage to constitutional
rights and to this Nation's judicial machinery that inevitably
results Page 413 U. S. 113 from state efforts to bar the distribution even of unprotected
material to consenting adults. NAACP v. Alabama, 377 U. S. 288 , 377 U. S. 307 (1964); Cantwell v. Connecticut, 310 U.S. at 310 U. S. 304 .
I would hold, therefore, that, at least in the absence of
distribution to juveniles or obtrusive exposure to unconsenting
adults, the First and Fourteenth Amendments prohibit the State and
Federal Governments from attempting wholly to suppress sexually
oriented materials on the basis of their allegedly "obscene"
contents. Nothing in this approach precludes those governments from
taking action to serve what may be strong and legitimate interests
through regulation of the manner of distribution of sexually
oriented material. VI Two Terms ago we noted that

															"there is developing sentiment that adults should have complete
freedom to produce, deal in, possess and consume whatever
communicative materials may appeal to them and that the law's
involvement with obscenity should be limited to those situations
where children are involved or where it is necessary to prevent
imposition on unwilling recipients of whatever age. The concepts
involved are said to be so elusive and the laws so inherently
unenforceable without extravagant expenditures of time and effort
by enforcement officers and the courts that basic reassessment is
not only wise but essential." United States v. Reidel, 402 U.S. at 402 U. S. 357 .
Nevertheless, we concluded that "the task of restructuring the
obscenity laws lies with those who pass, repeal, and amend statutes
and ordinances." Ibid. But the law of obscenity has been
fashioned by this Court -- and necessarily so under our duty to
enforce the Constitution. Page 413 U. S. 114 It is surely the duty of this Court, as expounder of the
Constitution, to provide a remedy for the present unsatisfactory
state of affairs. I do not pretend to have found a complete and
infallible answer to what Mr. Justice Harlan called "the
intractable obscenity problem." Interstate Circuit, Inc. v.
Dallas, 390 U.S. at 390 U. S. 704 (separate opinion). See also Memoirs v. Massachusetts, 383
U.S. at 383 U. S. 456 (dissenting opinion). Difficult questions must still be faced,
notably in the areas of distribution to juveniles and offensive
exposure to unconsenting adults. Whatever the extent of state power
to regulate in those areas, [ Footnote
2/29 ] it should be clear that the view I espouse today would
introduce a large measure of clarity to this troubled area, would
reduce the institutional pressure on this Court and the rest of the
State and Federal Judiciary, and would guarantee fuller freedom of
expression while leaving room for the protection of legitimate
governmental interests. Since the Supreme Court of Georgia
erroneously concluded that the State has power to suppress sexually
oriented material even in the absence of distribution to juveniles
or exposure to unconsenting adults, I would reverse that judgment
and remand the case to that court for further proceedings not
inconsistent with this opinion.

															[ Footnote 2/1 ]

															Ga.Code Ann. § 22101 provides in pertinent part that

															"(b) Material is obscene if considered as a whole, applying
community standards, its predominant appeal is to prurient
interest, that is, a shameful or morbid interest in nudity, sex or
excretion, and utterly without redeeming social value and if, in
addition, it goes substantially beyond customary limits of candor
in describing or representing such matters. Undeveloped
photographs, molds, printing plates and the like shall be deemed
obscene notwithstanding that processing or other acts may be
required to make the obscenity patent or to disseminate it."

															[ Footnote 2/2 ]

															Ga.Code § 22101(a):

															"A person commits the offense of distributing obscene materials
[as described in subsection (b), 413 U.S.
49 fn2/1|>n. 1, supra ] when he sells, lends, rents,
leases, gives, advertises, publishes, exhibits or otherwise
disseminates to any person any obscene material of any description,
knowing the obscene nature thereof, or who offers to do so, or who
possesses such material with the intent so to do. . . ."

															[ Footnote 2/3 ]

															The precise holding of the trial court is not free from
ambiguity. After pointing out that the films could be considered
obscene, and that they still could not be suppressed in the absence
of exposure to juveniles or unconsenting adults, the trial court
concluded that

															"[i]t is the judgment of this court that the films, even though
they display the human body and the human personality in a most
degrading fashion, are not obscene."

															It is not clear whether the trial court found that the films
were not obscene in the sense that they were protected expression
under the standards of Roth v. United States, 354 U.
S. 476 (1957), and Redrup v. New York, 386 U. S. 767 (1967), or whether it used the expression "not obscene" as a term
of art to indicate that the films could not be suppressed even
though they were not protected under the Roth-Redrup standards. In any case, the Georgia Supreme Court viewed the trial
court's opinion as holding that the films could not be suppressed,
even if they were unprotected expression, provided that they were
not exhibited to juveniles or unconsenting adults.

															[ Footnote 2/4 ]

															"As to all such problems, this Court said in Thornhill v.
Alabama, 310 U. S. 88 , 310 U. S.
101 -102 (1940): "

															"'The freedom of speech and of the press guaranteed by the
Constitution embraces at the least the liberty to discuss publicly
and truthfully all matters of public concern without
previous restraint or fear of subsequent punishment. The exigencies
of the colonial period and the efforts to secure freedom from
oppressive administration developed a broadened conception of these
liberties as adequate to supply the public need for information
and education with respect to the significant issues of the
times. . . . Freedom of discussion, if it would fulfill its
historic function in this nation, must embrace all issues about
which information is needed or appropriate to enable the members of
society to cope with the exigencies of their period. '
(Emphasis added.)" Roth, 354 U.S. at 354 U. S.
487 -488. See also, e.g., Thomas v. Collins, 323 U. S. 516 , 323 U. S. 531 (1945) ("the rights of free speech and a free press are not
confined to any field of human interest").

															[ Footnote 2/5 ] See, e.g., Kalven, The Metaphysics of the Law of
Obscenity, 1960 Sup.Ct.Rev. 1, 10-11; cf. Beauharnais v.
Illinois, 343 U. S. 250 (1952).

															[ Footnote 2/6 ] See, e.g., T. Emerson, The System of Freedom of
Expression 487 (1970); Kalven, supra, 413 U.S.
49 fn2/5|>n. 5; Comment, More Ado About Dirty Books, 75 Yale
L.J. 1364 (1966).

															[ Footnote 2/7 ]

															On the question of community standards see also Hoyt v.
Minnesota, 399 U. S. 524 (1970) (BLACKMUN, J., joined by BURGER, C.J., and Harlan, J.,
dissenting) (flexibility for state standards); Cain v.
Kentucky, 397 U. S. 319 (1970) (BURGER, C.J., dissenting) (same); Manual Enterprises v.
Day, 370 U. S. 478 , 370 U. S. 488 (1962) (Harlan, J., joined by STEWART, J.) (national standards in
context of federal prosecution).

															[ Footnote 2/8 ]

															No fewer than 31 cases have been disposed of in this fashion.
Aside from the three cases reversed in Redrup, they are: Keney v. New York, 388 U. S. 440 (1967); Friedman v. New York, 388 U.
S. 441 (1967); Ratner v. California, 388 U. S. 442 (1967); Cobert v. New York, 388 U.
S. 443 (1967); Sheperd v. New York, 388 U. S. 444 (1967); Avansino v. New York, 388 U.
S. 446 (1967); Aday v. New York, 388 U.
S. 447 (1967); Books, Inc. v. United States, 388 U. S. 449 (1967); A Quantity of Books v. Kansas, 388 U.
S. 452 (1967); Mazes v. Ohio, 388 U.
S. 453 (1967); Schackman v. California, 388 U. S. 454 (1967); Potomac News Co. v. United States, 389 U. S.
47 (1967); Conner v. City of Hammond, 389 U. S. 48 (1967); Central Magazine Sales, Ltd. v. United States, 389 U. S. 50 (1967); Chance v. California, 389 U. S.
89 (1967); I. M. Amusement Corp. v. Ohio, 389 U. S. 573 (1968); Robert Arthur Management Corp. v. Tennessee, 389 U. S. 578 (1968); Felton v. City of Pensacola, 390 U.
S. 340 (1968); Henry v. Louisiana, 392 U.
S. 655 (1968); Cain v. Kentucky, supra; Bloss v.
Dykema, 398 U. S. 278 (1970); Walker v. Ohio, 398 U. S. 434 (1970); Hoyt v. Minnesota, supra; Childs v. Oregon, 401
U.S. 1006 (1971); Bloss v. Michigan, 402 U.S. 938 (1971); Burgin v. South Carolina, 404 U.
S. 809 (1971); Hartstein v. Missouri, 404 U.S.
988 (1971); Wiener v. California, 404 U.S. 988 (1971).

															[ Footnote 2/9 ]

															Although I did not join the opinion of the Court in Stanley
v. Georgia, 394 U. S. 557 (1969), I am now inclined to agree that "the Constitution protects
the right to receive information and ideas," and that "[t]his right
to receive information and ideas, regardless of their social worth
. . . is fundamental to our free society." Id. at 394 U. S. 564 . See Martin v. City of Struthers, 319 U.
S. 141 , 319 U. S. 143 (1943); Winters v. New York, 333 U.
S. 507 , 333 U. S. 510 (1948); Lamont v. Postmaster General, 381 U.
S. 301 , 381 U. S.
307 -308 (1965) (concurring opinion). This right is
closely tied, as Stanley recognized, to "the right to be
free, except in very limited circumstances, from unwarranted
governmental intrusions into one's privacy." 394 U.S. at 394 U. S. 564 . See Griswold v. Connecticut, 381 U.
S. 479 (1965); Olmstead v. United States, 277 U. S. 438 , 277 U. S. 478 (1928) (Brandeis, J., dissenting). It is similarly related to

															"the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally
affecting a person as the decision whether to bear or beget a
child"

															(italics omitted), Eisenstadt v. Baird, 405 U.
S. 438 , 405 U. S. 453 (1972), and the right to exercise "autonomous control over the
development and expression of one's intellect, interests, tastes,
and personality." (Italics omitted.) Doe v. Bolton, 410 U. S. 179 , 410 U. S. 211 (1973) (DOUGLAS, J., concurring). It seems to me that the
recognition of these intertwining rights calls in question the
validity of the two-level approach recognized in Roth. After all, if a person has the right to receive information without
regard to its social worth -- that is, without regard to its
obscenity -- then it would seem to follow that a State could not
constitutionally punish one who undertakes to provide this
information to a willing adult recipient. See
Eisenstadt v. Baird, supra, at 405 U. S.
443 -446. In any event, I need not rely on this line of
analysis or explore all of its possible ramifications, for there is
available a narrower basis on which to rest this decision. Whether
or not a class of "obscene" and thus entirely unprotected speech
does exist, I am forced to conclude that the class is incapable of
definition with sufficient clarity to withstand attack on vagueness
grounds. Accordingly, it is on principles of the "void for
vagueness" doctrine that this opinion exclusively relies.

															[ Footnote 2/10 ]

															In this regard, the problems of vagueness and overbreadth are,
plainly, closely intertwined. See NAACP v. Button, 371 U. S. 415 , 371 U. S.
432 -433 (1963); Note, The First Amendment Overbreadth
Doctrine, 83 Harv.L.Rev. 844, 845 (1970). Cf. infra at 413 U. S.
93 -94.

															[ Footnote 2/11 ] See also Speiser v. Randall, 357 U.
S. 513 (1958); cf. Barenblatt v. United States, 360 U. S. 109 , 360 U. S.
137 -138 (1959) (Black, J., dissenting):

															"This Court . . . has emphasized that the 'vice of vagueness' is
especially pernicious where legislative power over an area
involving speech, press, petition and assembly is involved. . . .
For a statute broad enough to support infringement of speech,
writings, thoughts and public assemblies, against the unequivocal
command of the First Amendment necessarily leaves all persons to
guess just what the law really means to cover, and fear of a wrong
guess inevitably leads people to forego the very rights the
Constitution sought to protect above all others. Vagueness becomes
even more intolerable in this area if one accepts, as the Court
today does, a balancing test to decide if First Amendment rights
shall be protected. It is difficult, at best, to make a man guess
-- at the penalty of imprisonment -- whether a court will consider
the State's need for certain information superior to society's
interest in unfettered freedom. It is unconscionable to make him
choose between the right to keep silent and the need to speak when
the statute supposedly establishing the state's interest' is too
vague to give him guidance."

															(Citations omitted.)

															[ Footnote 2/12 ]

															Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev.
844, 885-886 and n. 158 (1970) ("Thus, in the area of obscenity the
overbreadth doctrine operates interstitially, when no line of
privilege is apposite or yet to be found, to control the impact of
schemes designed to curb distribution of unprotected
material").

															[ Footnote 2/13 ]

															While the Court's modification of the Memoirs test is
small, it should still prove sufficient to invalidate virtually
every state law relating to the suppression of obscenity. For,
under the Court's restatement, a statute must specifically
enumerate certain forms of sexual conduct, the depiction of which
is to be prohibited. It seems highly doubtful to me that state
courts will be able to construe state statutes so as to incorporate
a carefully itemized list of various forms of sexual conduct, and
thus to bring them into conformity with the Court's requirements. Cf. Blount v. Rizzi, 400 U. S. 410 , 400 U. S. 419 (1971). The statutes of at least one State should, however, escape
the wholesale invalidation. Oregon has recently revised its statute
to prohibit only the distribution of obscene materials to juveniles
or unconsenting adults. The enactment of this principle is, of
course, a choice constitutionally open to every State, even under
the Court's decision. See Oregon Laws 1971, c. 743, Art.
29, §§ 255-262.

															[ Footnote 2/14 ]

															"All ideas having even the slightest redeeming social importance
-- unorthodox ideas, controversial ideas, even ideas hateful to the
prevailing climate of opinion -- have the full protection of the
guaranties, unless excludable because they encroach upon the
limited area of more important interests. But implicit in the
history of the First Amendment is the rejection of obscenity as
utterly without redeeming social importance." Roth v. United States, supra, at 354 U. S.
484 .

															[ Footnote 2/15 ] Miller v. California, ante at 413 U. S.
22 .

															[ Footnote 2/16 ] Huffman v. United States, 152 U.S. App. D.C. 238, 470
F.2d 386 (1971). The test apparently requires an effort to
distinguish between "singles" and "duals," between "erect penises"
and "semi-erect penises," and between "ongoing sexual activity" and
"imminent sexual activity."

															[ Footnote 2/17 ]

															Note, The "Void for Vagueness" Doctrine in the Supreme Court,
109 U.Pa.L.Rev. 67, 81 (1960).

															[ Footnote 2/18 ] Compare Ginsberg v. New York, 390 U.
S. 629 , 390 U. S. 672 (1968) (Fortas, J., dissenting); Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S.
187 -190 (1964) (BRENNAN, J., joined by Goldberg, J.); Manual Enterprises v. Day, 370 U.S. at 370 U. S. 488 (Harlan, J., joined by STEWART, J.); and Kingsley Pictures
Corp. v. Regents, 360 U. S. 684 , 360 U. S.
696 -697 (1959) (Frankfurter, J., concurring); id. at 360 U. S. 708 (Harlan, J., joined by Frankfurter, J., and Whittaker, J.,
concurring), with Jacobellis v. Ohio, supra, at 378 U. S.
202 -203 (Warren, C.J., joined by Clark, J., dissenting); Roth v. United States, 354 U.S. at 354 U. S. 492 n. 30; and Kingsley Books, Inc. v. Brown, 354 U.
S. 436 , 354 U. S. 448 (1957) (BRENNAN, J., dissenting). See also Walker v. Ohio, 398 U. S. 434 (1970) (BURGER, C.J., dissenting).

															[ Footnote 2/19 ]

															Mr. Justice Harlan, it bears noting, considered this requirement
critical for review of not only federal but state convictions,
despite his view that the States were accorded more latitude than
the Federal Government in defining obscenity. See, e.g., Roth
supra, at 354 U. S.
502 -503 (separate opinion).

															[ Footnote 2/20 ] See generally Culombe v. Connecticut, 367 U.
S. 568 , 367 U. S.
603 -606 (1961) (opinion of Frankfurter, J.); cf.
Crowell v. Benson, 285 U. S. 22 , 285 U. S. 55 -65
(1932); Ng Fung Ho v. White, 259 U.
S. 276 , 259 U. S.
284 -285 (1922).

															[ Footnote 2/21 ] See 413 U.S.
49 fn2/9|>n. 9, supra. [ Footnote 2/22 ] Cf. United States v. O'Brien, 391 U.
S. 367 , 391 U. S.
376 -377 (1968):

															"This Court has held that, when 'speech' and 'nonspeech'
elements are combined in the same course of conduct, a sufficiently
important governmental interest in regulating the nonspeech element
can justify incidental limitations on First Amendment freedoms. To
characterize the quality of the governmental interest which must
appear, the Court has employed a variety of descriptive terms:
compelling; substantial; subordinating; paramount; cogent; strong.
Whatever imprecision inheres in these terms, we think it clear that
a government regulation is sufficiently justified if it is within
the constitutional power of the Government; if it furthers an
important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if
the incidental restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that
interest."

															(Footnotes omitted.) See also Speiser v. Randall, 357 U. S. 513 (1958).

															[ Footnote 2/23 ] See also Rabe v. Washington, 405 U.
S. 313 , 405 U. S. 317 (1972) (concurring opinion); United States v. Reidel, 402 U. S. 351 , 402 U. S.
360 -362 (1971) (separate opinion); Ginsberg v. New
York, 390 U. S. 629 (1968); id. at 390 U. S.
674 -675 (dissenting opinion); Redmond v. United
States, 384 U. S. 264 , 384 U. S. 265 (1966); Ginzburg v. United States, 383 U.
S. 463 (1966); id. at 383 U. S. 498 n. 1 (dissenting opinion); Memoirs v. Massachusetts, 383 U. S. 413 , 383 U. S. 421 n. 8 (1966); Jacobellis v. Ohio, 378 U.S. at 378 U. S. 195 (1964) (opinion of BRENNAN, J., joined by Goldberg, J.); id. at 378 U. S. 201 (dissenting opinion). See also Report of the Commission on
Obscenity and Pornography 300-301 (1970) (focus of early obscenity
laws on protection of youth).

															[ Footnote 2/24 ]

															T. Emerson, The System of Freedom of Expression 496 (1970).

															[ Footnote 2/25 ] See ibid. [ Footnote 2/26 ]

															Indeed, since Stanley was decided, the President's
Commission on Obscenity and Pornography has concluded:

															"In sum, empirical research designed to clarify the question has
found no evidence to date that exposure to explicit sexual
materials plays a significant role in the causation of delinquent
or criminal behavior among youth or adults. The Commission cannot
conclude that exposure to erotic materials is a factor in the
causation of sex crime or sex delinquency."

															Report of the Commission on Obscenity and Pornography 27 (1970)
(footnote omitted). To the contrary, the Commission found that,

															"[o]n the positive side, explicit sexual materials are sought as
a source of entertainment and information by substantial numbers of
American adults. At times, these materials also appear to serve to
increase and facilitate constructive communication about sexual
matters within marriage." Id. at 53.

															[ Footnote 2/27 ] See Henkin, Morals and the Constitution: The Sin of
Obscenity, 63 Col.L.Rev. 391, 395 (1963).

															[ Footnote 2/28 ]

															"[I]n our system, undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of
expression. Any departure from absolute regimentation may cause
trouble. Any variation from the majority's opinion may inspire
fear. Any word spoken, in class, in the lunchroom, or on the
campus, that deviates from the views of another person may start an
argument or cause a disturbance. But our Constitution says we must
take this risk, Terminiello v. Chicago, 337 U. S. 1 (1949); and our history says that it is this sort of hazardous
freedom -- this kind of openness -- that is the basis of our
national strength and of the independence and vigor of Americans
who grow up and live in this relatively permissive, often
disputatious, society." Tinker v. Des Moines School District, 393 U.
S. 503 , 393 U. S.
508 -509 (1969). See also Cohen v. California, 403 U. S. 15 , 403 U. S. 23 (1971).

															[ Footnote 2/29 ]

															The Court erroneously states, Miller v. California,
ante at 413 U. S. 27 ,
that the author of this opinion "indicates that suppression of
unprotected obscene material is permissible to avoid exposure to
unconsenting adults . . . and to juveniles. . . ." I defer
expression of my views as to the scope of state power in these
areas until cases squarely presenting these questions are before
the Court. See 413 U.S.
49 fn2/9|>n. 9, supra; Miller v. California, supra, (dissenting opinion).