Jacobellis vs. Ohio

The constitutional standard for obscenity requires application of a national, not local, community standard, and a work cannot be banned unless it is "utterly without redeeming social importance." The SC must conduct an independent constitutional judgment on whether material is obscene.

• Ohio Revised Code § 2905.34 prohibited knowingly exhibiting obscene films.
• The film "Les Amants" ("The Lovers") contained an explicit love scene.
• Jacobellis was convicted for exhibiting it in Cleveland Heights, Ohio.

• Convicted by a three-judge trial court (jury waived).
• Affirmed by the Ohio Court of Appeals (115 Ohio App. 226).
• Affirmed by the Supreme Court of Ohio (173 Ohio St. 22).
• SC noted probable jurisdiction, then restored for reargument.

• Nico Jacobellis managed a theater in Cleveland Heights, Ohio.
• He exhibited the French film "The Lovers," which includes an explicit love scene in its final reel.
• The film was shown in about 100 U.S. cities, including Columbus and Toledo, Ohio.
• It received mixed critical reviews—some praised it as a top film of its year.
• Jacobellis was convicted on two counts of possessing and exhibiting an obscene film.

• The film is not obscene under the First and Fourteenth Amendments.
• The SC must independently review the constitutional question of obscenity.
• The proper community standard is national, not local.
• The film has artistic and social merit.

• The film is obscene under Ohio law and the Roth standard.
• Local community standards should determine obscenity.
• The conviction was supported by sufficient evidence.

• Procedural Issues: N/A
• Substantive Issues:
  1. Whether the SC must make an independent constitutional judgment on obscenity.
  2. Whether the "community standards" in the Roth test are local or national.
  3. Whether the film "The Lovers" is obscene under the applicable standard.

• Procedural: N/A
• Substantive:
  1. Yes. The SC has a duty to make an independent constitutional judgment on whether material is obscene, as obscenity implicates First Amendment protections.
  2. National. The "contemporary community standards" in Roth refer to the Nation as a whole, not the local community. A local standard would create intolerable variations in constitutional protection across jurisdictions.
  3. Not obscene. The film does not appeal to prurient interest under the national standard and is not "utterly without redeeming social importance." Judgment reversed.

• Roth Obscenity Test — Material is obscene if "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The SC reaffirmed this test but added clarifications:
  • The work must be "utterly without redeeming social importance."
  • It must "go substantially beyond customary limits of candor."
  • The community standard is national, not local.
  • Independent Constitutional Judgment — In First Amendment cases, the SC must conduct its own independent review of the facts to determine if material is constitutionally protected, rather than deferring to lower court findings.

• "It is, after all, a national Constitution we are expounding." — Brennan, J., on why community standards must be national.
• "I know it when I see it, and the motion picture involved in this case is not that." — Stewart, J., concurring, on "hard-core pornography."
• "To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy." — Quoting Judge Learned Hand on community standards.

• Roth v. United States (354 U.S. 476) — Established the foundational obscenity test; reaffirmed here.
• Joseph Burstyn, Inc. v. Wilson (343 U.S. 495) — Held motion pictures are protected by the First Amendment.
• Manual Enterprises, Inc. v. Day (370 U.S. 478) — Cited for the requirement that material go beyond customary candor.
• Butler v. Michigan (352 U.S. 380) — Cited for the principle that obscenity laws cannot reduce adults to reading only what is fit for children.

• First Amendment — Freedom of speech and press; obscenity is excluded from protection.
• Fourteenth Amendment — Due Process Clause applies First Amendment to the states.
• Ohio Revised Code § 2905.34 — State obscenity statute under which Jacobellis was convicted.

• Black, J., joined by Douglas, J. — Would hold all obscenity laws unconstitutional under the First Amendment; no exception for obscenity.
• Stewart, J. — Criminal obscenity laws are limited to "hard-core pornography"; the film here did not qualify.
• Goldberg, J. — Joined Brennan's opinion but added that the film's love scene was too fragmentary to be obscene under any standard.

• Warren, C.J., joined by Clark, J. — Argued for local community standards and a "sufficient evidence" standard of review. Would affirm the conviction, criticizing the plurality for making the SC a "super censor."
• Harlan, J. — Would allow states wider latitude than the federal government in defining obscenity. Would apply a rationality review to state obscenity laws and affirm Ohio's conviction.