Wisconsin high court could strike down obscenity law

Wednesday, October 28, 1998

The Wisconsin Supreme Court could soon strike down the state's obscenity law if it rules that the law violates the free-expression rights guaranteed by the state constitution.

Under the American system of law, a state constitution must provide at least as much protection as the U.S. Constitution. However, a state constitution is allowed to provide even greater protection. It is often said that the protections in the U.S. Constitution provide a floor — not a ceiling — for constitutional freedoms.

A state supreme court, therefore, has the power to rule that under its state constitution obscene speech receives some protection.

The U.S. Supreme Court has ruled that obscenity is a form of unprotected, valueless speech unworthy of any First Amendment protection. In the 1942 case Chaplinsky v. New Hampshire, the U.S. Supreme Court wrote: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and the obscene, the profane, the libelous, and the insulting or 'fighting' words — those which, by their very utterance, inflict injury.”

However, Chaplinsky was not an obscenity case. It was not until 1957 that the Supreme Court squarely addressed the question of whether obscenity was entitled to any First Amendment protection.

The high court made clear in Roth v. U.S. that material considered obscene received no First Amendment protection. Justice William Brennan, who 16 years later changed his mind, wrote for the Roth court that “obscenity is not within the area of constitutionally protected speech or press.”

After struggling with obscenity cases throughout the 1960s, the Supreme Court reformulated obscenity law in the 1973 case Miller v. California. The court established what it called “basic guidelines” for jurors in obscenity cases:

· “Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.”

  • “Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.”
  • “Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”

However, the court cautioned that “it is not our function to propose regulatory schemes for the States.” Instead, the court gave a “few plain examples of what a state statute could define for regulation.”

One possible avenue for a state supreme court is to abandon the so-called obscenity exception. A state court do this — as explained above — by finding that its state constitution provides greater protection for freedom of expression than the First Amendment in the U.S. Constitution's Bill of Rights.

UCLA law professor Eugene Volokh says this position is “eminently credible.” He said: “Anybody who lives in a state has the protections of two constitutions: the federal constitution, which protects people from infringements by federal and state government officials and the state constitution, which protects people from infringements by state government officials.”

Volokh says that a state supreme court may interpret its freedom of expression guarantee more broadly than the U.S. Supreme Court has interpreted the First Amendment, though it need not do so.

Last month, the Wisconsin high court heard oral arguments in County of Kenosha v. C&S; Management, Inc. C&S; Management, which operates the adult bookstore Crossroads, contends that its obscenity convictions should be overturned in part because state and county obscenity laws violate the freedom of expression protections in the state constitution. A decision is expected before the end of the year.

Rob Henak, attorney for the adult bookstore, contends that the Wisconsin high court should find the state obscenity law violates the state constitution.

There is at least one legal precedent for this argument. In the 1987 case State v. Henry, the Oregon Supreme Court ruled that the state's obscenity law violated its state constitution.

The case arose out of the obscenity conviction of Earl Henry, the owner of an adult bookstore. Henry's store was raided, and he was charged and convicted for disseminating obscene materials. The Oregon Supreme Court dismissed the conviction.

In his 1992 book Free Speech for Me – But Not for Thee, Nat Hentoff writes: “Mr. Henry has become a figure in the history of American free expression because the raid on his bookstore led to Oregon becoming the first state in the nation to abolish the offense of obscenity.”

Article I, Section 8 of the Oregon Constitution provides: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write or pint freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

According to the Oregon high court, no criminal law could outlaw a certain category of speech unless that speech represented a “historically established exception” to the general guarantee of freedom of expression afforded by the state constitution. For instance, perjury, fraud and solicitation of crimes are forms of speech that have historically been forms of unprotected speech.

The Oregon Supreme Court first noted that the text of the state constitution was “broader” than the text of the First Amendment. The state constitution provision “covers any expression of opinion, including verbal and nonverbal expressions contained in films, pictures, paintings, sculpture and the like,” wrote the court.

Next, the Oregon court cited former U.S. Supreme Justice William Douglas for the proposition that early American laws criminalized only sexual works that were considered anti-religious or blasphemous.

The Oregon high court wrote: “The very fact that 'obscenity' originally was pursued and repressed for its 'anti-establishment' irreverence rather than for its bawdiness elsewhere and only to protect the morals of youth in this state leads us to conclude that no broad or all-encompassing historical exception from the guarantees of free expression was ever intended.”

Robert O'Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, said that “the importance of the Henry case is that it makes clear that states may or may not follow the Miller test. It is illustrative of how the federal system leaves states to criminalize or not criminalize certain material. The U.S. Supreme Court has made clear that the Constitution permits, but does not require, states to criminalize obscenity among consenting adults.”

However, Janet LaRue, director of legal policy for the Family Research Council, says that “this argument that obscenity laws violate state constitutional free-expression provisions has generally not prevailed.”

“Most of the states, including California whose state constitution provides greater protection than the federal constitution, have still said that obscenity is not included in any free-speech provision of the state constitution,” she said.

“Under the First Amendment and even under the most expansive interpretation of state free-speech provisions, freedom of speech is not absolute,” LaRue said. “Perjury, false advertising, fighting words and defamation are types of speech that are not protected. Obscenity and child pornography are just two more examples.”

However, others say the Wisconsin and Oregon cases call into question whether there should be an obscenity exception at all.

“There is no rationale for a categorical exception for something called obscenity,” Henak said. “All classes of speech should be treated the same way. The state can regulate the speech if the state can show a compelling state interest and the regulation is narrowly tailored. This standard would still outlaw child pornography, other material deemed harmful to minors and allow for licensing and zoning. But there should not be a categorical ban on speech.”

Henak wrote in court papers that “the [U.S. Supreme] Court has never explained how the content-based proscription of obscenity jibes with its standard First Amendment analysis.”

Perhaps Justice Brennan later changed his mind on obscenity in part for this reason. Brennan wrote in a dissent in the 1973 case Paris Adult Theatre I v. Slaton, 16 years after his Roth opinion, that “at least in the absence of distributing to juveniles or obtrusive exposure to unconsenting adults” there was no constitutional way of distinguishing so-called obscenity from constitutionally protected material.

“The essence of our problem in the obscenity area,” Brennan wrote, “is that we have been unable to provide sensitive tools to separate obscenity from other sexually oriented but constitutionally protected speech so that efforts to suppress the former do not spill over into the suppression of the latter.”

LaRue contends, however, that protecting obscenity would “demean the sanctity of the mantle of protection provided by the First Amendment and state constitutional provisions.”

But Henak disagrees, saying: “The First Amendment is there to protect all of us, not just the type of statements that most of us think are proper or acceptable. If the only thing the First Amendment did was to protect acceptable, nonoffensive speech, there would not be any reason for it. The First Amendment is there to protect speech that many if not most people find offensive.”