In 1968, a First Amendment lawyer named Charles Rembar published a book entitled The End of Obscenity. Rembar described his adventures defending such twentieth century literary classics as Henry Miller’s Tropic of Cancer and D.H. Lawrence’s Lady Chatterley’s Lover against obscenity prosecutions. He predicted that because of then-recent Supreme Court rulings, the philistine dark ages of obscenity law were ending. The so-called obscenity exception to the First Amendment, an exception unjustified by history, logic, or constitutional law, would soon be eliminated.
The Supreme Court decisions on which Rembar relied had held that a literary work could not be banned unless it was – in the then-current phrase – “utterly without redeeming social value.” This “utterly without” standard, as one scholar recently observed, ushered in a sort of “glasnost” in obscenity law. “For if obscenity was utterly devoid of social value, it was an immediate corollary that anything that was not utterly devoid of social value, no matter how salacious, was ipso facto not obscene.”
Alas, Mr. Rembar and his First Amendment colleagues proved overly optimistic. In 1973, by a slim 5-4 margin, a newly Nixonized Supreme Court rejected arguments for ending the dubious enterprise of banning, suppressing, and jailing people for disseminating material with sexual themes. The case was Miller v. California, and instead of doing away with obscenity laws, the Court, now led by Nixon appointee Warren Burger, made obscenity convictions easier to obtain. Miller did this in two ways: first, by relaxing the “utterly without redeeming social value” requirement, and second, by delegating to “contemporary community standards” a determination of the other two prongs of the obscenity test – patent offensiveness and appeal to the “prurient” interest in sex.
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