Is prohibiting possession of obscene publications unconstitutional?
<p>In the Supreme Court Case <a href="https://supreme.justia.com/cases/federal/us/394/557/#tab-opinion-1947939" rel="nofollow noreferrer">Stanley v. Georgia, 394 U.S. 557 (1969)</a>, the Court declared that the &quot;mere private possession of obscene matter cannot constitutionally be made a crime&quot;, at 559.  However, it has been made clear by the Supreme Court that obscenity is not protected by the First Amendment.  For example, in <a href="https://supreme.justia.com/cases/federal/us/535/234/#tab-opinion-1961047" rel="nofollow noreferrer">Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)</a>, the Court noted that &quot;pornography can be banned only if obscene&quot;, at 240.  Aren't the two statements in Stanley and Ashcroft contradictory?  What am I missing?</p>

<h2>Overview</h2>
<p>The two statements, properly understood, are not inconsistent, and cannot be taken to mean that the Court has overruled <em>Stanley</em>, although the US Supreme Court can and does reverse its own prior decisions when it sees fit.</p>
<h2>Cases</h2>
<p>The five most relevant cases here are, in chronological order (which is significant):</p>
<ul>
<li><a href="https://supreme.justia.com/cases/federal/us/354/476/" rel="nofollow noreferrer"><em>Roth v. United States</em>, 354 U.S. 476 (1957)</a></li>
<li><a href="https://supreme.justia.com/cases/federal/us/394/557/#tab-opinion-1947939" rel="nofollow noreferrer"><em>Stanley v. Georgia</em>, 394 U.S. 557 (1969)</a></li>
<li><a href="https://supreme.justia.com/cases/federal/us/413/15/" rel="nofollow noreferrer"><em>Miller v. California</em>, 413 U.S. 15 (1973)</a></li>
<li><a href="https://supreme.justia.com/cases/federal/us/458/747/" rel="nofollow noreferrer"><em>New York v. Ferber</em>, 458 U. S. 747 (1982)</a></li>
<li><a href="https://supreme.justia.com/cases/federal/us/535/234/#tab-opinion-1961047" rel="nofollow noreferrer"><em>Ashcroft v. Free Speech Coalition</em>, 535 U.S. 234 (2002)</a></li>
</ul>
<p>Note that Stanley refereed to the definition of obscenity from <em>Roth</em>, not the later (and still current) <em>Miller</em> standard.</p>
<p><em>Roth</em> covered two cases, one about mailing allegedly obscene publications, and one about possessing such publications with intent to sell them. <em>Miller</em> was about the unsolicited mass mailing of ads for works of erotica. It was alleged that the ads themselves were obscene, as well as the works advertised. <em>Ferber</em> dealt with a bookstore distributing child porn that was allegedly <strong>not</strong> obscene under <em>Miller</em>. <em>Ashcroft</em> dealt with laws attempting to extend the child pornography rules to images created using adults who appeared to be minors, or using computers to create images when no actual person had been involved as a model or subject. The law in question purported to prohibit such images whether or not they were obscene under <em>Miller</em> (or indeed under the earlier <em>Roth</em> standard.) Only <em>Stanley</em> dealt with the purely private possession of allegedly obscene images that were not alleged to be &quot;child porn&quot;.</p>
<h2><em>Stanley</em></h2>
<p>The <em>Stanley</em> opinion states (at 560) that:</p>
<blockquote>
<p>Georgia concedes that the present case appears to be one of &quot;first impression . . . on this exact point,&quot; ...</p>
</blockquote>
<p>That is, that the issue had not previously been addressed in case law, and so was not included in the <em>Roth</em> decision. The opinion goes on to state (at 560-563):</p>
<blockquote>
<p>It is true that <em>Roth</em> does declare, seemingly without qualification, that obscenity is not protected by the First Amendment. That statement has been repeated in various forms in subsequent cases. See, e.g., <em>Smith v. California</em>, 361 U. S. 147, 361 U. S. 152 (1959); <em>Jacobellis v. Ohio</em>, 378 U. S. 184, 378 U. S. 186-187 (1964) (opinion of BRENNAN, J.); <em>Ginsberg v. New York</em>, supra, at 390 U. S. 635. However, neither <em>Roth</em> nor any subsequent decision of this Court dealt with the precise problem involved in the present case. Roth was convicted of mailing obscene circulars and advertising, and an obscene book, in violation of a federal obscenity statute.  The defendant in a companion case, <em>Alberts v. California</em>, 354 U. S. 476 (1957), was convicted of &quot;lewdly keeping for sale obscene and indecent books, and [of] writing, composing and publishing an obscene advertisement of them. . . .&quot; <em>Id</em>. at 354 U. S. 481. None of the statements cited by the Court in <em>Roth</em> for the proposition that &quot;this Court has always assumed that obscenity is not protected by the freedoms of speech and press&quot; were made in the context of a statute punishing mere private possession of obscene material; the cases cited deal for the most part with use of the mails to distribute objectionable material or with some form of public distribution or dissemination. Moreover, none of this Court's decisions subsequent to Roth involved prosecution for private possession of obscene materials. Those cases dealt with the power of the State and Federal Governments to prohibit or regulate certain public actions taken or intended to be taken with respect to obscene matter. Indeed, with one
exception, we have been unable to discover any case in which the issue in the present case has been fully considered. In this context, we do not believe that this case can be decided simply by citing <em>Roth</em>. <em>Roth</em> and its progeny certainly do mean that the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity. But the assertion of that interest cannot, in every context, be insulated from all constitutional protections. Neither <em>Roth</em> nor any other decision of this Court reaches that far.</p>
</blockquote>
<p>In short, statements in <em>Roth</em>, and later cases that rely on <em>Roth</em> prior to <em>Stanley</em>  that obscenity is not protected by the First Amendment were <em>obiter dicta</em> (comments by the way) as far as purely private possession was concerned, and were not binding precedent.</p>
<h2><em>Ferber</em></h2>
<p>In <em>New York v. Ferber</em> the Court held that teh <em>Miller</em> standard does not apply to child pornography. It wrote (at 756):</p>
<blockquote>
<p>The Miller standard, like its predecessors, was an accommodation between the State's interests in protecting the &quot;sensibilities of unwilling recipients&quot; from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. ..., however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children.</p>
<p>...</p>
<p>The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.  That judgment, we think, easily passes muster under the First Amendment.</p>
<p>Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. [Footnote 10] Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious, if not the only practical, method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product.</p>
</blockquote>
<p>Based on this reasoning, <em>Ferber</em> held that laws against child porn may prohibit content that is not obscene under <em>Miller</em></p>
<h2><em>Ashcroft</em></h2>
<p>Now we come to <em>Ashcroft v. Free Speech Coalition</em>. That was a case about alleged child porn. The laws in that area are different. Existing law makes criminal the mere possession of child porn. The Child Pornography Prevention Act of 1996 (CPPA)  sought to broaden this to include &quot;virtual child porn&quot; where no actual child was involved in the production process. The Court wrote:</p>
<blockquote>
<p>By prohibiting child pornography that does not depict an actual child, the statute goes beyond <em>New York v. Ferber</em>, 458 U. S. 747 (1982), which distinguished child pornography from other sexually explicit speech because of the State's interest in protecting the children exploited by the production process. See <em>id</em>., at 758. As a general rule, pornography can be banned only if obscene, but under <em>Ferber</em>, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in <em>Miller v. California</em>, 413 U. S. 15 (1973). Ferber recognized that &quot;[t]he Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children.&quot; 458 U. S., at 761.</p>
<p>The CPPA, however, is not directed at speech that is obscene; Congress has proscribed those materials through a separate statute. 18 U. S. C. §§ 1460-1466. Like the law in <em>Ferber</em>, the CPPA seeks to reach beyond obscenity, and it makes no attempt to conform to the <em>Miller</em> standard. For instance, the statute would reach visual depictions, such as movies, even if they have redeeming social value.</p>
<p>The principal question to be resolved, then, is whether the CPP A is constitutional where it proscribes a significant universe of speech that is neither obscene under <em>Miller</em> nor child pornography under <em>Ferber</em>.</p>
<p>Before 1996, Congress defined child pornography as the type of depictions at issue in Ferber, images made using actual minors. 18 U. S. C. § 2252 (1994 ed.). The CPP A retains that prohibition at 18 U. S. C. § 2256(8)(A) and adds three other prohibited categories of speech, of which the first, § 2256(8)(B), and the third, § 2256(8)(D), are at issue in this case. Section 2256(8)(B) prohibits &quot;any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture,&quot; that &quot;is, or appears to be, of a minor engaging in sexually explicit conduct.&quot; The prohibition on &quot;any visual depiction&quot; does not depend at all on how the image is produced. The section captures a range of depictions, sometimes called &quot;virtual child pornography,&quot; which include computer-generated images, as well as images produced by more traditional means. For instance, the literal terms of the statute embrace a Renaissance painting depicting a scene from classical mythology, a &quot;picture&quot; that &quot;appears to be, of a minor engaging in sexually explicit conduct.&quot; The statute also prohibits Hollywood movies, filmed without any child actors, if a jury believes an actor &quot;appears to be&quot; a minor engaging in &quot;actual or simulated ... sexual intercourse.&quot; § 2256(2).</p>
<p>...</p>
<p>Congress may pass valid laws to protect children from abuse, and it has. E. g., 18 U. S. C. §§ 2241,2251. The prospect of crime, however, by itself does not justify laws suppressing protected speech. See <em>Kingsley Int'l Pictures Corp. v. Regents of Univ. of N. Y.</em>, 360 U. S. 684, 689 (1959) (&quot;Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech&quot; (internal quotation marks and citation omitted)). It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities. See <em>FCC v. Pacifica Foundation</em>, 438 U. S. 726, 745 (1978) (&quot;[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it&quot;); see also <em>Reno v. American Civil Liberties Union</em>, 521 U. S. 844, 874 (1997) (&quot;In evaluating the free speech rights of adults, we have made it perfectly clear that '[s]exual expression which is indecent but not obscene is protected by the First Amendment''') (quoting <em>Sable Communications of Cal., Inc. v. FCC</em>, 492 U. S. 115, 126 (1989));</p>
</blockquote>
<p>The <em>Ashcroft</em> decision held that &quot;virtual child porn&quot; which affected no actual child could not be treated in the same way as actual child porn, and could not be banned if not obscene under <em>Miller</em>. It did not deal with purely private possession.</p>
<h2>Conclusion</h2>
<p>In short, the statements in <em>Ashcroft</em>, <em>Miller</em>, and <em>Roth</em> that obscene content is not protected by the US First Amendment do not deal with laws prohibiting purely private possession of such content, with no intent to distribute or sell the content. Thus they are not inconsistent.</p>

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