In a widely admired article, Harry Kalven argued that the New York Times case1 embodies the "central meaning" of the First Amendment. On his view, in a free, open society, maximum protection must be accorded to "political" speech.2 He concluded that the right freely to criticize the government must lie at the center of any adequate theory of the First Amendment.3
It is not so easy to make a comparable claim about the relationship between obscenity and the First Amendment. The Supreme Court's conception of obscenity is partially responsible. While the Court in Roth v. United States (1957) explicitly barred "obscenity" from the protection of the First Amendment, it defined the term so that only a marginal class of writings warranted the label.4 Obscenity was given enough precision so that obscenity prosecutions were unlikely to result in the loss of much of value, a result which was reinforced by the Court's parallel concern with local enforcement methods-a First Amendment due process, if you will.5 In this respect, the 1966 obscenity decisions, Memoirs v. Massachusetts,6 Ginzburg v. United States7 and Mishkin v. New York,8 do not appear to portend fundamental changes. Attempts to suppress Eros, The Housewife's Handbook on Selective Promiscuity, and Mr. Mishkin's collection of So Firm So Fully Packed and The Strap Returns, etc., are not to be equated with the attempted suppression of Lady Chatterly's Lover, Memoirs of Hecate County or Strange Fruit, all of which felt the censors' crushing heel but a few short years ago.9 Nor is the literary importance of Edmund Wilson and Lillian Smith likely to be confused with that of Ralph Ginzburg and Edward Mishkin. Obscenity litigation in 1966 remains concerned with writings of little or no importance, as it has for nearly a decade.
The foregoing analysis is, however, unsatisfying. Many people have no desire whatever to read Ulysses or Memoirs of Hecate County; their tastes run to Eros or The Strap Returns. And the 1966 decisions, even more than Roth, permit the state severely to restrict their reading fare. The existence of this governmental power of suppression demands explanation in any coherent "general theory" of the First Amendment.10 Before 1966 the crucial question in obscenity prosecutions centered on the book itself; was it obscene per se?"11 The new rulings have added another category-a form of variable obscenity or obscenity per quod -books assumed not to be obscene per se but which because of extrinsic facts ("the circumstances of production, sale and publicity") may be treated as such. The question is whether obscenity doctrine, vintage 1966, can be reconciled with the First Amendment.
Henry P. Monaghan,
Obscenity, 1966: The Marriage of Obscenity Per Se and Obscenity Per Quod,
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/575