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4.2.12
WC: 191694

In Stanley [the] Court held that in certain circumstances possession of a moving picture film is constitutionally protected even though by contemporary standards the film is obscene. We do not consider this irrelevant.

The Court then went on to consider the state’s argument that an obscene film, even viewed in a restricted theater, can induce the viewer to commit rape.

The question is, how far does Stanley go. Is the decision to be limited to the precise problem of “mere private possession of obscene material,” is it the high water mark of a past flood, or is it the precursor of a new one? Defendant points to the fact that the court in Stanley stated that Roth v. United States, was “not impaired by today’s holding, and in the course of its opinion recognized the state’s interest there upheld in prohibiting public distribution of obscenity. Yet, with due respect, Roth cannot remain intact, for the Court there had announced that “obscenity is not within the area of constitutionally protected speech or press,” whereas it held that Stanley’s interest was protected by the First Amendment, and that the fact that the film was “devoid of any ideological content” was irrelevant.

Of necessity the Stanley court held that obscenity presented no clear and present danger to the adult viewer, or to the public as a result of his exposure. Obscenity may be offensive; it is not per se harmful. Had the Court considered obscenity harmful as such, the fact that the defendant possessed it privately in his home would have been of no consequence.

The Court then rendered its conclusion:

We confess that no oracle speaks to Karalexis unambiguously. Nonetheless, we think it probable that Roth remains intact only with respect to public distribution in the full sense, and that restricted distribution, adequately controlled, is no longer to be condemned.

...

If a rich Stanley can view a film, or read a book, in his home, a poorer Stanley should be free to visit a protected theater or library. We see no reason for saying he must go alone.

It was the first time in history that a court—any court—had ruled that the government had no power to ban or prosecute an “obscene” film that was shown to the public in a theater. I had achieved a total victory not only for my client, but for my novel approach to offensiveness under the First Amendment. It was a heck of a way to begin my career as a lawyer. The victory would, however, be short lived, at least in theory, if not in practice.

Not surprisingly, the District Attorney appealed our victory to the Supreme Court, which accepted the case. I was asked to argue for Grove Press. And so, at the age of 31, I argued my first case before the High Court.

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