Obscenity from Stanley to Karalexis: A Back Door Approach to First Amendment Protection
This note re-examines government regulation of obscene material in the light of the first amendment right of free speech and particularly in the light of two recent cases. The case of Stanely v. Georgia is potentially as important as any obscenity case decided in regent years.For the first time, admittedly obscene material was extended first amendment protection when it was possessed and enjoyed in the privacy of one's own home. In Karalexis v. Byrne, the court went a step further and applied the Stanley privilege to a public theater which controlled its advertising and admissions in a way that limited its audiences to consenting adults. If Stanley and Karalexis mark a new approach to obscenity cases, as they apparently do, it becomes necessary to review current attempts to regulate obscenity to determine not whether given material is obscene, but whether it is constitutionally protected regardless of its social value. Under the emerging rule, even admittedly obscene material can be regulated only when the state has a provable interest, as in the cases of distribution to children, pandering, or invasion of the privacy of others. Thus, because of the broadened constitutional protection, the many state statutes in this area may become largely ineffective as blanket bans on the distribution and possession of obscene literature.
Bryan K. McCarty,
Obscenity from Stanley to Karalexis: A Back Door Approach to First Amendment Protection,
23 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol23/iss2/6