Interstate Circuit, Inc. v. City of Dallas (390 U.S. 676)/Concurrence Harlan

by John Marshall Harlan II

United States Supreme Court

390 U.S. 676

Interstate Circuit, Inc.  v.  City of Dallas

 Argued: Jan. 15 and 16, 1968. --- Decided: April 22, 1968

Mr. Justice HARLAN, concurring in No. 47, and dissenting in Nos. 56 and 64.

These cases usher the Court into a new phase of the intractable obscenity problem: may a State prevent the dissemination of obscene or other obnoxious material to juveniles upon standards less stringent than those which would govern its distribution to adults?

In No. 47, the Ginsberg case, the Court upholds a New York statute applicable only to juveniles which, as construed by the state courts, in effect embodies in diluted form the 'adult' obscenity standards established by Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and the prevailing opinion in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. In Nos. 56 and 64, the Interstate Circuit and United Artists cases, the Court strikes down on the ground of vagueness a similar Dallas ordinance, not couched, however, entirely in obscenity terms. In none of these cases does the Court pass judgment on the particular material condemned by the state courts.

As the Court enters this new area of obscenity law it is well to take stock of where we are at present in this constitutional field. The subject of obscenity has produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication. ^[1] Two members of the Court steadfastly maintain that the First and Fourteenth Amendments render society powerless to protect itself against the dissemination of even the filthiest materials. ^[2] No other member of the Court, past or present, has ever stated his acceptance of that point of view. But there is among present members of the Court a sharp divergence as to the proper application of the standards in Roth, supra, ^[3] Memoirs, supra, ^[4] and Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, ^[5] for judging whether given material is constitutionally protected or unprotected. Most of the present Justices who believe that 'obscenity' is not beyond the pale of governmental control seemingly consider that the Roth-Memoirs-Ginzburg tests permit suppression of material that falls short of so-called 'hard core pornography,' on equal terms as between federal and state authority. ^[6] Another view is that only 'hard core pornography' may be suppressed, whether by federal or state authority. ^[7] And still another view, that of this writer, is that only 'hard core pornography' may be suppressed by the Federal Government, whereas under the Fourteenth Amendment States are permitted wider authority to deal with obnoxious matter than might be justifiable under a strict application of the Roth-Memoirs-Ginzburg rules. ^[8]

There are also differences among us as to how our appellate process should work in reviewing obscenity determinations. One view is that we should simply examine the proceedings below to ascertain whether the lower federal or state courts have made a genuine effort to apply the Roth-Memoirs-Ginzburg tests, and that if such is the case, their determinations that the questioned material is obscene should be accepted, much as would any findings of fact. ^[9] Another view is that the question of whether particular material is obscene inherently entails a constitutional judgment for which the Court has ultimate responsibility, and hence that it is incumbent upon us to judge for ourselves, de novo as it were, the obscenity vel non of the challenged matter. ^[10]

The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment. ^[11] From the standpoint of the Court itself the current approach has required us to spend an inordinate amount of time in the absurd business of perusing and viewing the miserable stuff that pours into the Court, mostly in state cases, all to no better end than second-guessing state judges. In all except rare instances, I venture to say, no substantial free-speech interest is at stake, given the right of the States to control obscenity.

I believe that no improvement in this chaotic state of affairs is likely to come until it is recognized that this whole problem is primarily one of state concern, and that the Constitution tolerates much wider authority and discretion in the States to control the dissemination of obscene materials than it does in the Federal Government. Reiterating the viewpoint that I have expressed in earlier opinions, I would limit federal control of obscene materials to those which all would recognize as what has been called 'hard core pornography,' and would withhold the federal judicial hand from interfering with state determinations except in instances where the state action clearly appears to be but the product of prudish overzealousness. See Roth v. United States, supra, 354 U.S., at 496, 77 S.Ct., at 1315; Manual Enterprises v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639; Jacobellis v. State of Ohio, supra, 378 U.S. 184, at 203, 84 S.Ct. 1676, at 1685; Memoirs v. Massachusetts, supra, 383 U.S., at 455, 86 S.Ct., at 995. And in the juvenile field I think that the Constitution is still more tolerant of state policy and its applications. If current doctrinaire views as to the reach of the First Amendment into state affairs are thought to stand in the way of such a functional approach, I would revert to basic constitutional concepts that until recent times have been recognized and respected as the fundamental genius of our federal system, namely the acceptance of wide state autonomy in local affairs.

I come now to the cases at hand. In No. 47, Ginsberg, I concur in the judgment and join the opinion of the Court, fully preserving, however, the views repeatedly expressed in my earlier opinions in this field.

In Nos. 56 and 64, the Interstate Circuit and United Artists cases, I respectfully dissent. I do not agree that the Dallas ordinance can be struck down, as the Court now holds, on the score of vagueness. The ambiguities about which the Court expresses concern are essentially two. ^[12] First, the ordinance does not include a definition of 'sexual promiscuity.' ^[13] Second, the ordinance provides that a film 'shall be considered 'likely to incite or encourage' crime delinquency or sexual promiscuity * * * if, in the judgment of the Board, there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted.' The Court is concerned that many may disagree as to whether any specific materials create such impressions on young persons.

These seem to me entirely inadequate grounds on which to strike down the ordinance. It must be granted, of course, that people may differ as to the application of these standards; but the central lesson of this Court's efforts in this area is that under all verbal formulae, including even this Court's own definition of obscenity, reasonable men can, and ordinarily do, differ as to the proper assessment of challenged materials. The truth is that the Court has demanded greater precision of language from the City of Dallas than the Court can itself give, or even than can sensibly be expected in this area of the law.

The Court has not always asked so much. ^[14] In Roth, the federal statute under which the petitioner had been sentenced to five years' imprisonment forbade the mailing of material that was 'obscene, lewd, lascivious, or filthy * * * or other publication of an indecent character.' ^[15] 354 U.S., at 491, 77 S.Ct., at 1312. In Alberts v. State of California, the companion case to Roth, the California statute provided that the materials must have a 'tendency to deprave or corrupt its readers.' Id., at 498, 77 S.Ct., at 1316. No definitions were included in either statute, yet the Court there explicitly rejected the argument that they did not 'provide reasonably ascertainable standards of guilt * * *.' Id., at 491, 77 S.Ct., at 1312. The Court recognized that the terms of obscenity statutes are necessarily imprecise, but emphasized, quoting United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877, that the "Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. * * *" ^[16] Ibid. Yet it should be repeated that the Interstate Circuit cases unlike Roth and Alberts, involve merely the classification, not the proscription by criminal prosecution, of objectionable materials. In my opinion, the ordinance does not fail either to give adequate notice of the films that are to be restricted, or to provide sufficiently definite standards for its administration. ^[17]

Although the Court finds it unnecessary to pass judgment upon the materials involved in these cases, I consider it preferable to face that question. Upon the premises set forth in my Roth and Memoirs opinions, and reiterated here, I would hold that in condemning these materials New York and the City of Dallas have acted within constitutional limits.

I would affirm the judgments in all three cases.

Notes

1. In the following 13 obscenity cases from the date Roth was decided, in which signed opinions were written for a decision or judgment of the Court, there has been a total of 55 separate opinions among the Justices. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (four opinions); Roth v. United States, supra (four opinions); Kingsley Int'l Pictures Corp. v. Regents of University of State of New York, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (six opinions); Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (five opinions); Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (three opinions); Marcus v. Search Warrants of Property at 104 East Tenth St., Kansas City, Mo., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (two opinions); Manual Enterprises v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (three opinions); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (four opinions); Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (six opinions); A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (four opinions); Memoirs v. Massachusetts, supra (five opinions); Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (five opinions); Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (four opinions).
2. See Roth v. United States, supra, 354 U.S., at 508, 77 S.Ct., at 1321 (dissenting opinion); Jacobellis v. State of Ohio, supra, 378 U.S., at 196, 84 S.Ct., at 1682 (separate opinion); Ginzburg v. United States, supra, 383 U.S., at 476, 482, 86 S.Ct., at 950, 953 (dissenting opinions).
3. Roth stated the test to be '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 489, 77 S.Ct., at 1311 (note omitted).
4. Memoirs elaborated the Roth test as follows: '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.' 383 U.S., at 418, 86 S.Ct., at 977.
5. The Ginzberg 'test' is difficult to state with any precision. The Court held that 'in close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the Roth test.' 383 U.S., at 474, 86 S.Ct., at 949. But this 'simply elaborates the test by which the obscenity vel non of the material must be judged.' Id., at 475, 86 S.Ct., at 950. Yet evidence of pandering may 'support the determination that the material is obscene even though in other contexts the material would escape such condemnation.' Id., at 476, 86 S.Ct., at 950. Pandering itself evidently encompasses every form of the "business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers." Id., at 467, 86 S.Ct., at 945 (note omitted).
6. See, e.g., Jacobellis v. State of Ohio, supra, 378 U.S., at 193-195, 84 S.Ct. at 1681-1682 (opinion of Brennan, J.).
7. See id., at 197, 84 S.Ct., at 1683 (concurring opinion of Stewart, J.).
8. See Roth v. United States, supra, 354 U.S., at 496, 77 S.Ct., at 1315 (concurring and dissenting opinion); Memoirs v. Massachusetts, supra, 383 U.S., at 455, 86 S.Ct., at 995 (dissenting opinion).
9. See Jacobellis v. State of Ohio, supra, 378 U.S., at 202, 84 S.Ct., at 1685 (dissenting opinion).
10. See Jacobellis, at 190, 84 S.Ct., at 1679 (opinion of Brennan, J.); Roth v. United States, supra, 354 U.S., at 497-498, 77 S.Ct., at 1315-1316 (concurring and dissenting opinion); Kingsley Int'l Pictures Corp. v. Regents of University of State of New York, supra, 360 U.S. at 708, 79 S.Ct. at 1375 (concurring in result).
11. See, e.g., Keney v. New York, 388 U.S. 440, 87 S.Ct. 2091, 18 L.Ed.2d 1302; Friedman v. New York, 388 U.S. 441, 87 S.Ct. 2091, 18 L.Ed.2d 1303; Ratner v. California, 388 U.S. 442, 87 S.Ct. 2092, 18 L.Ed.2d 1304; Cobert v. New York, 388 U.S. 443, 87 S.Ct. 2092, 18 L.Ed.2d 1305; Sheperd v. New York, 388 U.S. 444, 87 S.Ct. 2093, 18 L.Ed.2d 1306; Avansino v. New York, 388 U.S. 446, 87 S.Ct. 2093, 18 L.Ed.2d 1308; Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309; Corinth Publications, Inc. v. Wesberry, 388 U.S. 448, 87 S.Ct. 2096, 18 L.Ed.2d 1310; Books, Inc. v. United States, 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311; Rosenbloom v. Virginia, 388 U.S. 450, 87 S.Ct. 2095, 18 L.Ed.2d 1312; A Quantity of Copies of Books v. Kansas, 388 U.S. 452, 87 S.Ct. 2104, 18 L.Ed.2d 1314; Mazes v. Ohio, 388 U.S. 453, 87 S.Ct. 2105, 18 L.Ed.2d 1315; Schackman v. California, 388 U.S. 454, 87 S.Ct. 2107, 18 L.Ed.2d 1316; Landau v. Fording, 388 U.S. 456, 87 S.Ct. 2109, 18 L.Ed.2d 1317; Potomac News Co. v. United States, 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46; Conner v. City of Hammond, 389 U.S. 48, 88 S.Ct. 234, 19 L.Ed.2d 47; Central Magazine Sales, Ltd. v. United States, 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49; Chance v. California, 389 U.S. 89, 88 S.Ct. 253, 19 L.Ed.2d 256.
12. The Court emphasizes at greater length the failure of the Board and the Texas courts to proffer any clarification of the ordinance. This compels examination of the ordinance's terms, but it does not, of course, offer any independent basis for a conclusion that the ordinance is ambiguous.
13. The Court acknowledges that the city has since adopted a definition of sexual promiscuity, but it expresses no views as to the definition's adequacy.
14. It is pertinent to note that a majority of the Court did not hold that the New York statute at issue in Kingsley Int'l Pictures Corp. v. Regents of University of State of New York, supra, was impermissibly vague. The statute forbade the exhibition of a film 'which portrays acts of sexual immorality * * * or * * * presents such acts as desirable, acceptable or proper patterns of behavior.' Id., 360 U.S., at 685, 79 S.Ct., at 1364. It appears that only the opinion of Mr. Justice Clark, concurring in the result, upon which the Court now relies so heavily, described this standard as vague. Indeed, Mr. Justice Frankfurter said in his separate opinion that the 'Court does not strike the law down because of vagueness * * *.' Id., at 695, 79 S.Ct., at 1369. See also id., at 704, 79 S.Ct., at 1373. Mr. Justice Frankfurter went on to say that "(s)exual immorality' is not a new phrase in this branch of law and its implications dominate the context. I hardly conceive it possible that the Court would strike down as unconstitutional the federal statute against mailing lewd, obscene and lascivious matter, which has been the law of the land for nearly a hundred years, see the Act of March 3, 1865, 13 Stat. 507, and March 3, 1873, 17 Stat. 599, whatever specific instances may be found not within its allowable prohibition. In sustaining this legislation this Court gave the words 'lewd, obscene and lascivious' concreteness by saying that they concern 'sexual immorality." Id., at 695-696, 79 S.Ct., at 1369.
15. The statute involved in Roth now provides in part that it is a criminal offense to import or transport in interstate commerce any 'obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character * * *.' 18 U.S.C. § 1462. Similarly, § 1461 provides that it is a criminal offense to mail any 'obscene, lewd, lascivious, indecent, filthy or vile' article. See also §§ 1463, 1464, 1465. Although each of these sections makes profuse use of the disjunctive, no definitions of any of these descriptive terms are provided.
16. The Court went on to say that it 'is argued that because juries may reach different conclusions as to the same material, the statutes must be held to be insufficiently precise to satisfy due process requirements. But, it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system.' 354 U.S., at 492, 77 S.Ct., at 1313, n. 30. Precisely similar reasoning should be applicable to boards like that created by the Dallas ordinance, although the cost of differences in result is here measured (at least initially) by film classifications, and not by lengthy terms of imprisonment.
17. It is difficult to see how the Court could suppose that its Memoirs formula offers more precise warnings to film makers than does the Dallas ordinance. Surely the Court cannot now believe that 'redeeming social value,' 'patent offensiveness,' and 'prurient interest' are, particularly as modified so as to apply to children, terms of common understanding and clarity. Moreover, one wonders whether the pandering rationale adopted in Ginzburg v. United States, supra, is thought to give more 'guidance to those who seek to adjust their conduct' than does the Dallas ordinance. It is difficult to imagine any standard more vague, or more overbroad, than the 'new subjectivity' created by the Court's search for the 'leer of the sensualist.' See Magrath, The Obscenity Cases: Grapes of Roth, 1966 Sup.Ct.Rev. 7, 61.