Annotation 19 - First Amendment
.--Governmental power to protect the privacy interests of its citizens by penalizing publication or authorizing causes of action for publication implicates directly First Amendment rights. Privacy is a concept composed of several aspects. 160 As a tort concept, it embraces at least four branches of protected interests: protection from unreasonable intrusion upon one's seclusion, from appropriation of one's name or likeness, from unreasonable publicity given to one's private life, and from publicity which unreasonably places one in a false light before the public. 161
Invasion of Privacy
While the Court has variously recognized valid governmental interests in extending protection to privacy, 162 it has at the same time interposed substantial free expression interests in the balance. Thus, in Time, Inc. v. Hill, 163 the Times privilege was held to preclude recovery under a state privacy statute that permitted recovery for harm caused by exposure to public attention in any publication which contained factual inaccuracies, although not necessarily defamatory inaccuracies, in communications on matters of public interest. When in Gertz v. Robert Welch, Inc., 164 the Court held that the Times privilege was not applicable in defamation cases unless the plaintiff is a public official or public figure, even though plaintiff may have been involved in a matter of public interest, the question arose whether Hill applies to all ''false-light'' cases or only such cases involving public officials or public figures. 165 And, more important, Gertz left unresolved the issue ''whether the State may ever define and protect an area of privacy free from unwanted publicity in the press.'' 166
In Cox Broadcasting, the Court declined to pass on the broad question, holding instead that the accurate publication of informa tion obtained from public records is absolutely privileged. Thus, the State could not permit a civil recovery for invasion of privacy occasioned by the reporting of the name of a rape victim obtained from court records and from a proceeding in open court. 167 Nevertheless, the Court in appearing to retreat from what had seemed to be settled principle, that truth is a constitutionally required defense in any defamation action, whether plaintiff be a public official, public figure, or private individual, may have preserved for itself the discretion to recognize a constitutionally permissible tort of invasion of privacy through publication of truthful information. 168 But in recognition of the conflicting interests--in expression and in privacy-- it is evident that the judicial process in this area will be cautious.
Continuing to adhere to ''limited principles that sweep no more broadly than the appropriate context of the instant case,'' the Court invalidated an award of damages against a newspaper for printing the name of a sexual assault victim lawfully obtained from a sheriff's department press release. The state was unable to demonstrate that imposing liability served a ''need'' to further a state interest of the highest order, since the same interest could have been served by the more limited means of self regulation by the police, since the particular per se negligence statute precluded inquiry into the extent of privacy invasion (e.g., inquiry into whether the victim's identity was already widely known), and since the statute sin gled out ''mass communications'' media for liability rather than applying evenhandedly to anyone disclosing a victim's identity. 169
Emotional Distress Tort Actions .--In Hustler Magazine, Inc. v. Falwell, 170 the Court applied the New York Times v. Sullivan standard to recovery of damages by public officials and public figures for the tort of intentional infliction of emotional distress. The case involved an advertisement ''parody'' portraying the plaintiff, described by the Court as a ''nationally known minister active as a commentator on politics and public affairs,'' as engaged in ''a drunken incestuous rendezvous with his mother in an outhouse.'' 171 Affirming liability in this case, the Court believed, would subject ''political cartoonists and satirists . . .. to damage awards without any showing that their work falsely defamed its subject.'' 172 A proffered ''outrageousness'' standard for distinguishing such parodies from more traditional political cartoons was rejected. While not doubting that ''the caricature of respondent . . .. is at best a distant cousin of [some] political cartoons . . .. and a rather poor relation at that,'' the Court explained that '''[o]utrageousness''' in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views.'' 173 Therefore, proof of intent to cause injury, ''the gravamen of the tort,'' is insufficient ''in the area of public debate about public figures.'' Additional proof that the publication contained a false statement of fact made with actual malice was necessary, the Court concluded, in order ''to give adequate 'breathing space' to the freedoms protected by the First Amendment.'' 174
''Right of Publicity'' Tort Actions .--In Zacchini v. Scripps- Howard Broadcasting Co., 175 the Court held unprotected by the First Amendment a broadcast of a video tape of the ''entire act'' of a ''human cannonball'' in the context of the performer's suit for damages against the company for having ''appropriated'' his act, thereby injuring his right to the publicity value of his performance. The Court emphasized two differences between the legal action permitted here and the legal actions found unprotected or not fully protected in defamation and other privacy-type suits. First, the interest sought to be protected was, rather than a party's right to his reputation and freedom from mental distress, the right of the performer to remuneration for putting on his act. Second, the other torts if permitted decreased the information which would be made available to the public, whereas permitting this tort action would have an impact only on ''who gets to do the publishing.'' 176 In both respects, the tort action was analogous to patent and copyright laws in that both provide an economic incentive to persons to make the investment required to produce a performance of interest to the public. 177
Publication of Legally Confidential Information .--While a State may have numerous and important valid interests in assuring the confidentiality of certain information, it may not maintain this confidentiality through the criminal prosecution of nonparticipant third parties, including the press, who disclose or publish the information. 178 The case arose in the context of the investigation of a state judge by an official disciplinary body; both by state constitutional provision and by statute, the body's proceedings were required to be confidential and the statute made the divulging of information about the proceeding a misdemeanor. For publishing an accurate report about an investigation of a sitting judge, the newspaper was indicted and convicted of violating the statute, which the state courts construed to apply to nonparticipant divulging. Although the Court recognized the importance of confidentiality to the effectiveness of such a proceeding, it held that the publication here ''lies near the core of the First Amendment'' because the free discussion of public affairs, including the operation of the judicial system, is primary and the State's interests were simply insufficient to justify the encroachment on freedom of speech and of the press. 179 The scope of the privilege thus conferred by this decision on the press and on individuals is, however, somewhat unclear, because the Court appeared to reserve consideration of broader questions than those presented by the facts of the case. 180 It does appear, however, that government would find it difficult to punish the publication of almost any information by a nonparticipant to the process in which the information was developed to the same degree as it would be foreclosed from obtaining prior restraint of such publication. 181 There are also limits on the extent to which government may punish disclosures by participants in the criminal process, the Court having invalidated a restriction on a grand jury witness's disclosure of his own testimony after the grand jury had been discharged. 182
Obscenity .--Although public discussion of political affairs is at the core of the First Amendment, the guarantees of speech and press, it should have been noticed from the previous subsections, are broader. ''We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right.'' 1 The right to impart and to receive ''information and ideas, regardless of their social worth . . . is fundamental to our free society.'' 2 Indeed, it is primarily with regard to the entertaining function of expression that the law of obscenity is concerned, inasmuch as the Court has rejected any concept of ''ideological'' obscenity. 3 However, this function is not the reason why obscenity is outside the protection of the First Amendment, although the Court has never really been clear about what that reason is.
Adjudication over the constitutional law of obscenity began in Roth v. United States, 4 in which the Court in an opinion by Justice Brennan settled in the negative the ''dispositive question'' ''whether obscenity is utterance within the area of protected speech and press.'' 5 The Court then undertook a brief historical survey to demonstrate that ''the unconditional phrasing of the First Amendment was not intended to protect every utterance.'' All or practically all of the States which ratified the First Amendment had laws making blasphemy or profanity or both crimes, and provided for prosecutions of libels as well. It was this history which had caused the Court in Beauharnais to conclude that ''libelous utterances are not within the area of constitutionally protected speech,'' and this history was deemed to demonstrate that ''obscenity, too, was outside the protection intended for speech and press.'' 6 ''The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people . . . . All ideas having even the slightest redeeming social importance--unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion--have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.'' 7 It was objected that obscenity legislation punishes because of incitation to impure thoughts and without proof that obscene materials create a clear and present danger of antisocial conduct. But since obscenity was not protected at all, such tests as clear and present danger were irrelevant. 8
''However,'' Justice Brennan continued, ''sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press . . . . It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.'' 9 The standard which the Court thereupon adopted for the designation of material as unprotected obscenity was ''whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'' 10 The Court defined material appealing to prurient interest as ''material having a tendency to excite lustful thoughts,'' and defined prurient interest as ''a shameful or morbid interest in nudity, sex, or excretion.'' 11
In the years after Roth, the Court struggled with many obscenity cases with varying degrees of success. The cases can be grouped topically, but with the exception of those cases dealing with protec tion of children, 12 unwilling adult recipients, 13 and procedure, 14 these cases are best explicated chronologically.
Manual Enterprises v. Day 15 upset a Post Office ban upon the mailing of certain magazines addressed to homosexual audiences, but resulted in no majority opinion of the Court. Nor did a majority opinion emerge in Jacobellis v. Ohio, in which conviction for exhib iting a motion picture was reversed. 16 Chief Justice Warren's concurrence in Roth 17 was adopted by a majority in Ginzburg v. United States, 18 in which Justice Brennan for the Court held that in ''close'' cases borderline materials could be determined to be obscene if the seller ''pandered'' them in a way that indicated he was catering to prurient interests. The same five-Justice majority, with Justice Harlan concurring, the same day affirmed a state conviction of a distributor of books addressed to a sado-masochistic audience, applying the ''pandering'' test and concluding that material could be held legally obscene if it appealed to the prurient interests of the deviate group to which it was directed. 19 Unanimity was shattered, however, when on the same day the Court held that Fanny Hill, a novel at that point 277 years old, was not legally obscene. 20 The prevailing opinion again restated the Roth tests that, to be considered obscene, material must (1) have a dominant theme in the work considered as a whole that appeals to prurient interest, (2) be patently offensive because it goes beyond contemporary community standards, and (3) be utterly without redeeming social value. 21
After the divisions engendered by the disparate opinions in the three 1966 cases, the Court over the next several years submerged its differences by per curiam dispositions of nearly three dozen cases, in all but one of which it reversed convictions or civil determinations of obscenity. The initial case was Redrup v. New York, 22 in which, after noting that the cases involved did not present special questions requiring other treatment, such as concern for juve niles, protection of unwilling adult recipients, or proscription of pandering, 23 the Court succinctly summarized the varying positions of the seven Justices in the majority and said: ''[w]hichever of the constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand . . . .'' 24 And so things went for several years. 25
Changing membership on the Court raised increasing speculation about the continuing vitality of Roth; it seemed unlikely the Court would long continue its Redrup approach. 26 The change when it occurred strengthened the powers of government, federal, state, and local, to outlaw or restrictively regulate the sale and dissemination of materials found objectionable, and developed new standards for determining which objectionable materials are legally obscene.
At the end of the October 1971 Term, the Court requested argument on the question whether the display of sexually oriented films or of sexually oriented pictorial magazines, when surrounded by notice to the public of their nature and by reasonable protection against exposure to juveniles, was constitutionally protected. 27 By a five-to- four vote the following Term, the Court in Paris Adult Theatre I v. Slaton adhered to the principle established in Roth that obscene material is not protected by the First and Fourteenth Amendments even if access is limited to consenting adults. 28 Chief Justice Burger for the Court observed that the States have wider interests than protecting juveniles and unwilling adults from exposure to pornography; legitimate state interests, effectuated through the exercise of the police power, exist in protecting and improving the quality of life and the total community environment, in improving the tone of commerce in the cities, and in protecting public safety. It matters not that the States may be acting on the basis of unverifiable assumptions in arriving at the decision to suppress the trade in pornography; the Constitution does not require in the context of the trade in ideas that governmental courses of action be subject to empirical verification any more than it does in other fields. Nor does the Constitution embody any concept of laissez faire, or of privacy, or of Millsean ''free will,'' that curbs governmental efforts to suppress pornography. 29
In Miller v. California, 30 the Court then undertook to enunciate standards by which unprotected pornographic materials were to be identified. Because of the inherent dangers in undertaking to regulate any form of expression, laws to regulate pornography must be carefully limited; their scope is to be confined ''to works which depict or describe sexual conduct.'' That conduct must be specifically defined by the applicable statute, whether as written or as authoritatively construed by the courts. 31 The law ''must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.'' 32 The standard that a work must be ''utterly without redeeming social value'' before it may be suppressed was disavowed and discarded. In determining whether material appeals to a prurient interest or is patently offensive, the trier of fact, whether a judge or a jury, is not bound by a hypothetical national standard but may apply the local community standard where the trier of fact sits. 33 Prurient interest and patent offensiveness, the Court indicated, ''are essentially questions of fact.'' 34 By contrast, the third or ''value'' prong of the Miller test is not subject to a community standards test; instead, the appropriate standard is ''whether a reasonable person would find [literary, artistic, political, or scientific] value in the material, taken as a whole.'' 35 The Court in Miller reiterated that it was not permitting an unlimited degree of suppression of materials. Only ''hard core'' materials were to be deemed without the protection of the First Amendment; its idea of the content of ''hard core'' pornography was revealed in its example of the types of conduct that could not be portrayed: ''(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.'' 36 Portrayal need not be limited to pictorial representation; books containing only descriptive language, no pictures, were subject to suppression under the standards. 37
First Amendment values, the Court stressed in Miller, ''are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.'' 38 But the Court had conferred on juries as triers of fact the determination, based upon their understanding of community standards, whether material was ''patently offensive.'' Did not this virtually immunize these questions from appellate review? In Jenkins v. Georgia, 39 the Court, while adhering to the Miller standards, stated that ''juries [do not] have unbridled discretion in determining what is 'patently offensive.''' Miller was intended to make clear that only ''hard-core'' materials could be suppressed and this concept and the Court's descriptive itemization of some types of hardcore materials were ''intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination.'' The Court's own viewing of the motion picture in question convinced it that ''[n]othing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the 'patently offensive' element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment.'' 40 But in a companion case, the Court found that a jury determination of obscenity ''was supported by the evidence and consistent with'' the standards. 41
The decisions from the Paris Adult Theatre and Miller era were rendered by narrow majorities, 42 but nonetheless have guided the Court since. There is no indication that the dissenting viewpoints in those cases will gain ascendancy in the foreseeable future; 43 if anything, government authority to define and regulate obscenity may be strengthened. Also, the Court's willingness to allow substantial regulation of non-obscene but sexually explicit or indecent expression reduces the importance (outside the criminal area) of whether material is classified as obscene.
Even as to materials falling within the constitutional definition of obscene, the Court has recognized a limited private, protected interest in possession within the home, 44 unless those materials constitute child pornography. Stanley v. Georgia was an appeal from a state conviction for possession of obscene films discovered in appellant's home by police officers armed with a search warrant for other items which were not found. Unanimously, 45 the Court reversed, holding that the mere private possession of obscene materials in the home cannot be made a criminal offense. The Constitution protects the right to receive information and ideas, the Court said, regardless of their social value, and ''that right takes on an added dimension'' in the context of a prosecution for possession of something in one's own home. ''For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.'' 46 Despite the unqualified assertion in Roth that obscenity was not protected by the First Amendment, the Court observed, it and the cases following were concerned with the governmental interest in regulating commercial distribution of obscene materials.'' Roth and the cases following that decision are not impaired by today's decision,'' the Court insisted, 47 but in its rejection of each of the state contentions made in support of the conviction the Court appeared to be rejecting much of the basis of Roth. First, there is no governmental interest in protecting an individual's mind from the effect of obscenity. Second, the absence of ideological content in the films was irrelevant, since the Court will not draw a line between transmission of ideas and entertainment. Third, there is no empirical evidence to support a contention that exposure to obscene materials may incite a person to antisocial conduct; even if there were such evidence, enforcement of laws proscribing the offensive conduct is the answer. Fourth, punishment of mere possession is not necessary to punishment of distribution. Fifth, there was little danger that private possession would give rise to the objections underlying a proscription upon public dissemination, exposure to children and unwilling adults. 48
Stanley's broad rationale has been given a restrictive reading, and the holding has been confined to its facts. Any possible implication that Stanley was applicable outside the home and recognized a right to obtain pornography or a right in someone to supply it was soon dispelled. 49 The Court has consistently rejected Stanley's theoretical underpinnings, upholding morality-based regulation of the behavior of consenting adults. 50 Also, Stanley has been held inapplicable to possession of child pornography in the home, the Court determining that the state interest in protecting children from sexual exploitation far exceeds the interest in Stanley of protecting adults from themselves. 51 Apparently for this reason, a state's conclusion that punishment of mere possession is a necessary or desirable means of reducing production of child pornography will not be closely scrutinized. 52
Child Pornography .--In New York v. Ferber, 53 the Court recognized another category of expression that is outside the coverage of the First Amendment, the pictorial representation of children in films or still photographs in a variety of sexual activities or exposures of the genitals. The basic reason such depictions could be prohibited was the governmental interest in protecting the physical and psychological well-being of children whose participation in the production of these materials would subject them to exploitation and harm. The state may go beyond a mere prohibition on the use of the children, because it is not possible to protect children adequately without prohibiting the exhibition and dissemination of the materials and advertising about them. Thus, ''the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required.'' 54 But, since expression is involved, government must carefully define what conduct is to be prohibited and may reach only ''works that visually depict sexual conduct by children below a specified age.'' 55
The reach of the state may even extend to private possession of child pornography in the home. In Osborne v. Ohio 56 the Court upheld a state law criminalizing the possession or viewing of child pornography as applied to someone who possessed such materials in his home. Distinguishing Stanley v. Georgia, the Court ruled that Ohio's interest in preventing exploitation of children far exceeded what it characterized as Georgia's ''paternalistic interest'' in protecting the minds of adult viewers of pornography. 57 Because of the greater importance of the state interest involved, the Court saw less need to require states to demonstrate a strong necessity for regulating private possession as well as commercial distribution and sale.
Non-obscene But Sexually Explicit and Indecent Expression .-- There is expression, either spoken or portrayed, which is offensive to some but is not within the constitutional standards of unprotected obscenity. Nudity portrayed in films or stills cannot be presumed obscene 58 nor can offensive language ordinarily be punished simply because it offends someone. 59 Nonetheless, govern ment may regulate sexually explicit but non-obscene expression in a variety of ways. Legitimate governmental interests may be furthered by appropriately narrow regulation, and the Court's view of how narrow regulation must be is apparently influenced not only by its view of the strength of the government's interest in regulation, but also by its view of the importance of the expression itself. In other words, sexually explicit expression does not receive the same degree of protection afforded purely political speech. 60
Government has a ''compelling'' interest in the protection of children from seeing or hearing indecent material, but total bans applicable to adults and children alike are constitutionally suspect. 61 Also, government may take notice of objective conditions attributable to the commercialization of sexually explicit but non- obscene materials. Thus, the Court recognized a municipality's authority to zone land to prevent deterioration of urban areas, upholding an ordinance providing that ''adult theaters'' showing motion pictures that depicted ''specified sexual activities'' or ''specified anatomical areas'' could not be located within 100 feet of any two other establishments included within the ordinance or within 500 feet of a residential area. 62 Similarly, an adult bookstore is subject to closure as a public nuisance if it is being used as a place for prostitution and illegal sexual activities, since the closure ''was directed at unlawful conduct having nothing to do with books or other expressive activity.'' 63 However, a city was held constitutionally powerless to prohibit drive-in motion picture theaters from showing films containing nudity if the screen is visible from a public street or place. 64 Also, the FCC was unable to justify a ban on transmission of ''indecent'' but not obscene telephone messages. 65
The Court has recently held, however, that ''live'' productions containing nudity can be regulated to a greater extent than had been allowed for films and publications. Whether this represents a distinction between live performances and other entertainment media, or whether instead it signals a more permissive approach overall to governmental regulation of non-obscene but sexually explicit material, remains to be seen. In Barnes v. Glen Theatre, Inc., 66 the Court upheld application of Indiana's public indecency statute to require that dancers in public performances of nude, non-obscene erotic dancing wear ''pasties'' and a ''G-string'' rather than appear totally nude. There was no opinion of the Court, three Justices viewing the statute as a permissible regulation of ''societal order and morality,'' 67 one viewing it as a permissible means of regulating supposed secondary effects of prostitution and other criminal activity, 68 and a fifth Justice seeing no need for special First Amendment protection from a law of general applicability directed at conduct rather than expression. 69 All but one of the Justices agreed that nude dancing is entitled to some First Amendment protection, 70 but the result of Barnes was a bare minimum of protection. Numerous questions remain unanswered. In addition to the uncertainty over applicability of Barnes to regulation of the content of films or other shows in ''adult'' theaters, 71 there is also the issue of its applicability to nudity in operas or theatrical productions not normally associated with commercial exploitation of sex. 72 But broad implications for First Amendment doctrine are probably unwarranted. 73 The Indiana statute was not limited in application to barrooms; had it been, then the Twenty-first Amendment would have afforded additional authority to regulate the erotic dancing. 74
[Footnote 160] See, e.g., William Prosser, Law of Torts 117 (4th ed. 1971); Prosser, Privacy, 48 Calif. L. Rev. 383 (1960); J. Thomas McCarthy, The Rights of Publicity and Privacy (1987); Thomas Emerson, The System of Freedom of Expression 544-61 (1970). It should be noted that we do not have here the question of the protection of one's privacy from governmental invasion.
[Footnote 161] Restatement (Second), of Torts Sec. Sec. 652A-652I (1977). These four branches were originally propounded in Prosser's 1960 article (supra n.), incorporated in the Restatement, and now ''routinely accept[ed].'' McCarthy, supra n.160, Sec. 5.8[A].
[Footnote 162] Time. Inc. v. Hill, 385 U.S. 374, 383 n.7 (1967); and id. 402, 404 (Justice Harlan, concurring in part and dissenting in part), 411, 412-15 (Justice Fortas dissenting); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 487 -89 (1975).
[Footnote 167] More specifically, the information was obtained ''from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection.'' Id. at 491. There was thus involved both the First Amendment and the traditional privilege of the press to report the events of judicial proceedings. Id. at 493, 494-96.
[Footnote 168] Thus, Justice White for the Court noted that the defense of truth is constitutionally required in suits by public officials or public figures. But ''[t]he Court has nevertheless carefully left open the question whether the First and Fourteenth Amendments require that truth be recognized as a defense in a defamatory action brought by a private person as distinguished from a public official or public figure.'' Id. at 490. If truth is not a constitutionally required defense, then it would be possible for the States to make truthful defamation of private individuals actionable and, more important, truthful reporting of matters that constitute invasions of privacy actionable. See Brasco v. Reader's Digest, 4 Cal. 3d 520, 483 P. 2d 34, 93 Cal. Rptr. 866 (1971); Commonwealth v. Wiseman, 356 Mass. 251, 249 N.E. 2d 610 (1969), cert. den., 398 U.S. 960 (1970). Concurring in Cohn, 420 U.S., 497, Justice Powell contended that the question of truth as a constitutionally required defense was long settled in the affirmative and that Gertz itself, which he wrote, was explainable on no other basis. But he too would reserve the question of actionable invasions of privacy through truthful reporting. ''In some instances state actions that are denominated actions in defamation may in fact seek to protect citizens from injuries that are quite different from the wrongful damage to reputation flowing from false statements of fact. In such cases, the Constitution may permit a different balance. And, as today's opinion properly recognizes, causes of action grounded in a State's desire to protect privacy generally implicate interests that are distinct from those protected by defamation actions.'' Id. at 500.
[Footnote 172] Id. at 53.
[Footnote 173] Id. at 55.
[Footnote 174] Id. at 52-53.
[Footnote 175] 433 U.S. 562 (1977). The ''right of publicity'' tort is conceptually related to one of the privacy strands, ''appropriation'' of one's name or likeness for commercial purposes. Id. at 569-72. Justices Powell, Brennan, and Marshall dissented, finding the broadcast protected, id. at 579, and Justice Stevens dissented on other grounds. Id. at 582.
[Footnote 176] Id. at 573-74. Plaintiff was not seeking to bar the broadcast but rather to be paid for the value he lost through the broadcasting.
[Footnote 177] Id. at 576-78. This discussion is the closest the Court has come in considering how copyright laws in particular are to be reconciled with the First Amendment. The Court's emphasis is that they encourage the production of work for the public's benefit.
[Footnote 178] Landmark Communications v. Virginia, 435 U.S. 829 (1978). The decision by Chief Justice Burger was unanimous, Justices Brennan and Powell not participating, but Justice Stewart would have limited the holding to freedom of the press to publish. Id. at 848. See also Smith v. Daily Mail Pub. Co., 433 U.S. 97 (1979).
[Footnote 179] Id. at 838-42. The state court's utilization of the clear- and-present-danger test was disapproved in its application; additionally, the Court questioned the relevance of the test in this case. Id. at 842-45.
[Footnote 180] Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), in the context of a civil proceeding, had held that the First Amendment did not permit the imposition of liability on the press for truthful publication of information released to the public in official court records, id. at 496, but had expressly reserved the question ''whether the publication of truthful information withheld by law from the public domain is similarly privileged,'' id. at 497 n.27, and Landmark on its face appears to answer the question affirmatively. Caution is impelled, however, by the Court's similar reservation. ''We need not address all the implications of that question here, but only whether in the circumstances of this case Landmark's publication is protected by the First Amendment.'' 435 U.S. at 840 .
[Footnote 1] Winters v. New York, 333 U.S. 507, 510 (1948). Illustrative of the general observation is the fact that ''[m]usic, as a form of expression and communication, is protected under the First Amendment.'' Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989).
[Footnote 3] Winters v. New York, 333 U.S. 507 (1948); Burstyn v. Wilson, 343 U.S 495 (1952); Commercial Pictures Corp. v. Regents, 346 U.S. 587 (1954); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959). The last case involved the banning of the movie Lady Chatterley's Lover on the ground that it dealt too sympathetically with adultery. ''It is contended that the State's action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.'' Id. at 688-89.
[Footnote 4] 354 U.S. 476 (1957). Heard at the same time and decided in the same opinion was Alberts v. California, involving, of course, a state obscenity law. The Court's first opinion in the obscenity field was Butler v. Michigan, 352 U.S. 380 (1957), considered infra, p. 1113 n.18. Earlier the Court had divided four-to-four and thus affirmed a state court judgment that Edmund Wilson's Memoirs of Hecate County was obscene. Doubleday & Co. v. New York, 335 U.S. 848 (1948).
[Footnote 5] Roth v. United States, 354 U.S. 476, 481 (1957). Justice Brennan later changed his mind on this score, arguing that, because the Court had failed to develop a workable standard for distinguishing the obscene from the non-obscene, regulation should be confined to the protection of children and non-consenting adults. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73 (1973), and discussion infra p.1209, n.29.
[Footnote 10] Id. at 489.
[Footnote 11] Id. at 487 n.20. A statute defining ''prurient'' as ''that which incites lasciviousness or lust'' covers more than obscenity, the Court later indicated in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1984); obscenity consists in appeal to ''a shameful or morbid'' interest in sex, not in appeal to ''normal, healthy sexual desires.'' Brockett involved a facial challenge to the statute, so the Court did not have to explain the difference between ''normal, healthy'' sexual desires and ''shameful'' or ''morbid'' sexual desires.
[Footnote 12] In Butler v. Michigan, 352 U.S. 380 (1957), the Court unanimously reversed a conviction under a statute which punished general distribution of materials unsuitable for children. Protesting that the statute ''reduce[d] the adult population of Michigan to reading only what is fit for children,'' the Court pronounced the statute void. Narrowly drawn proscriptions for distribution or exhibition to children of materials which would not be obscene for adults are permissible, Ginsberg v. New York, 390 U.S. 629 (1968), although the Court insists on a high degree of specificity. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968); Rabeck v. New York, 391 U.S. 462 (1968). Protection of children in this context is concurred in even by those Justices who would proscribe obscenity regulation for adults. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73 , 113 (1973) (Justice Brennan dissenting). But children do have First Amendment protection and government may not bar dissemination of everything to them. ''Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.'' Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 -14 (1975) (in context of nudity on movie screen). See also FCC v. Pacifica Found., 438 U.S. 726, 749 -50 (1978); Pinkus v. United States, 436 U.S. 293, 296 - 98 (1978).
[Footnote 13] Protection of unwilling adults was the emphasis in Rowan v. Post Office Dep't, 397 U.S. 728 (1970), which upheld a scheme by which recipients of objectionable mail could put their names on a list and require the mailer to send no more such material. But, absent intrusions into the home, FCC v. Pacifica Found., 438 U.S. 726 (1978), or a degree of captivity that makes it impractical for the unwilling viewer or auditor to avoid exposure, government may not censor content, in the context of materials not meeting constitutional standards for denomination as pornography, to protect the sensibilities of some. It is up to offended individuals to turn away. Erznoznik v. City of Jacksonville, 422 U.S. 205, 208 -12 (1975). But see Pinkus v. United States, 436 U.S. 293, 298 -301 (1978) (jury in passing on what community standards are must include ''sensitive persons'' within the community).
[Footnote 14] The First Amendment requires that procedures for suppressing distribution of obscene materials provide for expedited consideration, for placing the burden of proof on government, and for hastening judicial review. Supra, p.1033. Additionally, Fourth Amendment search and seizure law has been suffused with First Amendment principles, so that the law governing searches for and seizures of allegedly obscene materials is more stringent than in most other areas. Marcus v. Search Warrant, 367 U.S. 717 (1961); A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Heller v. New York, 413 U.S. 483 (1973); Roaden v. Kentucky, 413 U.S. 496 (1973); Lo-Ji Sales v. New York, 442 U.S. 319 (1979); and see Walter v. United States, 447 U.S. 649 (1980). Scienter--that is, knowledge of the nature of the materials--is a prerequisite to conviction, Smith v. California, 361 U.S. 147 (1959), but the prosecution need only prove the defendant knew the contents of the material, not that he knew they were legally obscene. Hamling v. United States, 418 U.S. 87, 119 -24 (1974). See also Vance v. Universal Amusement Co., 445 U.S. 308 (1980) (public nuisance injunction of showing future films on basis of past exhibition of obscene films constitutes prior restraint); McKinney v. Alabama, 424 U.S. 669 (1976) (criminal defendants may not be bound by a finding of obscenity of materials in prior civil proceeding to which they were not parties). None of these strictures apply, however, to forfeituresimposed as part of a criminal penalty. Alexander v. UnitedStates, 509 U.S. 544 (1993) (upholding RICO forfeiture ofthe entire adult entertainment book and film business of anindividual convicted of obscenity and racketeeringoffenses). Justice Kennedy, dissenting in Alexander,objected to the ''forfeiture of expressive material that hadnot been adjudged to be obscene.'' Id. at 2786.
[Footnote 16] 378 U.S. 184 (1964). Without opinion, citing Jacobellis, the Court reversed a judgment that Henry Miller's Tropic of Cancer was obscene. Grove Press v. Gerstein, 378 U.S. 577 (1964). Jacobellis is best known for Justice Stewart's concurrence, contending that criminal prohibitions should be limited to ''hard-core pornography.'' The category ''may be indefinable,'' he added, but ''I know it when I see it, and the motion picture involved in this case is not that.'' Id. at 197. The difficulty with this visceral test is that other members of the Court did not always ''see it'' the same way; two years later, for example, Justice Stewart was on opposite sides in two obscenity decisions decided on the same day. A Book Named ''John Cleland's Memoirs of a Woman of Pleasure'' v. Attorney General of Massachusetts, 383 U.S. 413, 421 (1966) (concurring on basis that book was not obscene); Mishkin v. New York, 383 U.S. 502, 518 (1966) (dissenting from finding that material was obscene).
[Footnote 19] Mishkin v. New York, 383 U.S. 502 (1966). See id. at 507-10 for discussion of the legal issue raised by the limited appeal of the material. The Court relied on Mishkin in Ward v. Illinois, 431 U.S. 767, 772 (1977).
[Footnote 23] Id. at 771.
[Footnote 24] Id. at 770-71. The majority was thus composed of Chief Justice Warren and Justices Black, Douglas, Brennan, Stewart, White, and Fortas.
[Footnote 26] See United States v. Reidel, 402 U.S. 351 (1971) (federal prohibition of dissemination of obscene materials through the mails is constitutional); United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971) (customs seizures of obscene materials from baggage of travelers are constitutional). In Grove Press v. Maryland State Board of Censors, 401 U.S. 480 (1971), a state court determination that the motion picture ''I Am Curious (Yellow)'' was obscene was affirmed by an equally divided Court, Justice Douglas not participating. And Stanley v. Georgia, 394 U.S. 557, 560 -64, 568 (1969), had insisted that Roth remained the governing standard.
[Footnote 29] Id. at 57, 60-62, 63-64, 65-68. Delivering the principal dissent, Justice Brennan argued that the Court's Roth approach allowing the suppression of pornography was a failure, that the Court had not and could not formulate standards by which protected materials could be distinguished from unprotected materials, and that the First Amendment had been denigrated through the exposure of numerous persons to punishment for the dissemination of materials that fell close to one side of the line rather than the other, but more basically by deterrence of protected expression caused by the uncertainty. Id. at 73. ''I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene' contents.'' Id. at 113. Justices Stewart and Marshall joined this opinion; Justice Douglas dissented separately, adhering to the view that the First Amendment absolutely protected all expression. Id. at 70.
[Footnote 31] Miller v. California, 413 U.S. 15, 24 (1973). The Court stands ready to import into the general phrasings of federal statutes the standards it has now formulated. United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7 (1973) (Court is prepared to construe statutes proscribing materials that are ''obscene,'' ''lewd,'' ''lascivious,'' ''filthy,'' ''indecent,'' and ''immoral'' as limited to the types of ''hard core'' pornography reachable under the Miller standards). For other cases applying Miller standards to federal statutes, see Hamling v. United States, 418 U.S. 87, 110 -16 (1974) (use of the mails); United States v. Orito, 413 U.S. 139 (1973) (transportation of pornography in interstate commerce). The Court's insistence on specificity in state statutes, either as written by the legislature or as authoritatively construed by the state court, appears to have been significantly weakened, in fact if not in enunciation, in Ward v. Illinois, 431 U.S. 767 (1977).
[Footnote 33] It is the unprotected nature of obscenity that allows this inquiry; offensiveness to local community standards is, of course, a principle completely at odds with mainstream First Amendment jurisprudence. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989); R. A. V. v. City of St. Paul, 112 S. Ct. 2538 (1992).
[Footnote 34] Id. at 30-34. ''A juror is entitled to draw on his knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a 'reasonable' person in other areas of the law.'' Hamling v. United States, 418 U.S. 87, 104 (1974). The holding does not compel any particular circumscribed area to be used as a ''community.'' In federal cases, it will probably be the judicial district from which the jurors are drawn, Id. at 105- 106. Indeed, the jurors may be instructed to apply ''community standards'' without any definition being given of the ''community.'' Jenkins v. Georgia, 418 U.S. 153, 157 (1974). In a federal prosecution for use of the mails to transmit pornography, the fact that the legislature of the State within which the transaction takes place has abolished pornography regulation except for dealings with children does not preclude permitting the jurors in the federal case to make their own definitions of what is offensive to contemporary community standards; they may be told of the legislature's decision but they are not bound by it. Smith v. United States, 431 U.S. 291 (1977).
[Footnote 36] Miller v. California, 413 U.S. 15, 25 -28 (1973). Quoting Miller's language in Hamling v. United States, 418 U.S. 87, 114 (1974), the Court reiterated that it was only ''hard-core'' material that was unprotected. ''While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is 'patently offensive' within the meaning of the obscenity test set forth in the Miller cases.'' Referring to this language in Ward v. Illinois, 431 U.S. 767 (1977), the Court upheld a state court's power to construe its statute to reach sadomasochistic materials not within the confines of the Miller language.
[Footnote 40] Id. at 161. The film at issue was Carnal Knowledge.
[Footnote 41] Hamling v. United States, 418 U.S. 87 (1974). In Smith v. United States, 431 U.S. 291, 305 -06 (1977), the Court explained that jury determinations in accordance with their own understanding of the tolerance of the average person in their community are not unreviewable. Judicial review would pass on (1) whether the jury was properly instructed to consider the entire community and not simply the members' own subjective reaction or the reactions of a sensitive or of a callous minority, (2) whether the conduct depicted fell within the examples specified in Miller, (3) whether the work lacked serious literary, artistic, political, or scientific value, and (4) whether the evidence was sufficient. The Court indicated that the value test of Miller ''was particularly amenable to judicial review.'' The value test is not to be measured by community standards, the Court later held in Pope v. Illinois, 481 U.S. 497 (1987), but instead by a ''reasonable person'' standard. An erroneous instruction on this score, however, may be ''harmless error.'' Id. at 503.
[Footnote 42] For other five-to-four decisions of the era, see Marks v. United States, 430 U.S. 188 (1977); Smith v. United States, 431 U.S. 291 (1977); Splawn v. California, 431 U.S. 595 (1977); and Ward v. Illinois, 431 U.S. 767 (1977).
[Footnote 43] None of the dissenters in Miller and Paris Adult Theatre (Douglas, Brennan, Stewart, and Marshall) remain on the Court. Justice Stevens agrees with Justice Brennan that ''government may not constitutionally criminalize mere possession or sale of obscene literature, absent some connection to minors or obtrusive display to unconsenting adults,'' Pope v. Illinois, 481 U.S. 497, 513 (Stevens, J., dissenting), but it is doubtful whether any other members of the current Court share this view. Justice White's dissenting opinion in Barnes v. Glen Theatre, Inc., 111 S. Ct. 2456, 2472 (1991), joined by Justice Blackmun and the now-retired Justice Marshall, seems to reflect similar views with respect to regulation of non-obscene nude dancing, but does not address regulation of obscenity. Both Justice White and Justice Blackmun voted with the majority in Miller and Paris Adult Theatre.
[Footnote 45] Justice Marshall wrote the opinion of the Court and was joined by Justices Douglas, Harlan, and Fortas, and Chief Justice Warren. Justice Black concurred. Id. at 568. Justice Stewart concurred and was joined by Justices Brennan and White on a search and seizure point. Justice Stewart, however, had urged the First Amendment ground in an earlier case. Mapp v. Ohio, 367 U.S. 643, 686 (1961) (concurring opinion).
[Footnote 47] Id. at 560-64, 568.
[Footnote 48] Id. at 565-68.
[Footnote 49] Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65 -68 (1973). Transportation of unprotected material for private use may be prohibited, United States v. Orito, 413 U.S. 139 (1973), and the mails may be closed, United States v. Reidel, 402 U.S. 351 (1971), as may channels of international movement, United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971); United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973).
[Footnote 50] Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65 -70 (1973) (commercial showing of obscene films to consenting adults); Bowers v. Hardwick, 478 U.S. 186 (1986) (private, consensual, homosexual conduct); Barnes v. Glen Theatre, Inc., 111 S. Ct. 2456 (1991) (regulation of non- obscene, nude dancing restricted to adults).
[Footnote 52] Id. at 109-10.
[Footnote 53] 458 U.S. 747 (1982). Decision of the Court was unanimous, although there were several limiting concurrences. Compare, e.g., 775 (Justice Brennan, arguing for exemption of ''material with serious literary, scientific, or educational value''), with 774 (Justice O'Connor, arguing that such material need not be excepted). The Court did not pass on the question, inasmuch as the materials before it were well within the prohibitable category. Id. at 766-74.
[Footnote 54] Id. at 763-64.
[Footnote 55] Id. at 764 (emphasis original). The Court's statement of the modified Miller standards for child pornography is at id., 764-65.
[Footnote 57] Id. at 108.
[Footnote 59] E.g., Cohen v. California, 403 U.S. 15 (1971). Special rules apply to broadcast speech, which, because of its intrusion into the home and the difficulties of protecting children, is accorded ''the most limited First Amendment protection'' of all forms of communication; non- obscene but indecent language may be curtailed, the time of day and other circumstances determining the extent of curtailment. FCC v. Pacifica Found., 438 U.S. 726, 748 (1978). However, recent efforts by Congress and the FCC to extend the indecency ban to 24 hours a day have been rebuffed by an appeals court. Action for Children's Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991) (invalidating regulations promulgated pursuant to Pub. L. No. 100-459, Sec. 608), cert. denied, 112 S. Ct. 1281, 1282. Earlier, the same court had invalidated an FCC restriction on indecent, non-obscene broadcasts to the hours of midnight to 6 a.m., finding that the FCC had failed to adduce sufficient evidence to support the restraint. Action for Children's Television v. FCC, 852 F.2d 1332, 1335 (D.C. Cir. 1988). Congress has now imposed a similar 6 a.m.-to-midnight ban on indecent programming, with a 10 p.m.-to-midnight exception for stations that go off the air at midnight. Pub. L. 102-356, Sec. 16 (1992), 47 U.S.C. Sec. 303 note.
[Footnote 60] Justice Scalia, concurring in Sable Communications v. FCC, 492 U.S. 115, 132 (1989), suggested that there should be a ''sliding scale'' taking into account the definition of obscenity: ''[t]he more narrow the understanding of what is 'obscene,' and hence the more pornographic what is embraced within the residual category of 'indecency,' the more reasonable it becomes to insist upon greater assurance of insulation from minors.'' Barnes v. Glen Theatre, 111 S. Ct. 2456 (1991), upholding regulation of nude dancing even in the absence of threat to minors, may illustrate a general willingness by the Court to apply soft rather than strict scrutiny to regulation of more sexually explicit expression.
[Footnote 61] See Sable Communications v. FCC, 492 U.S. 115 (1989) (FCC's ''dial-a-porn'' rules imposing a total ban on ''indecent'' speech are unconstitutional, given less restrictive alternatives--e.g., credit cards or user IDs--of preventing access by children). Pacifica Foundation is distinguishable, the Court reasoned, because that case did not involve a ''total ban'' on broadcast, and also because there is no ''captive audience'' for the ''dial-it'' medium, as there is for the broadcast medium. 492 U.S. at 127 -28. Similar rules apply in regulation of cable TV. In Denver Area Educ. Tel. Consortium v. FCC, 116 S. Ct. 2374, 2391(1996), the Court, acknowledging that protection of children from sexually explicit programming is a ''compelling'' governmental interest (but refusing to determine whether strict scrutiny applies), nonetheless struck down a requirement that cable operators segregate and blockindecent programming on leased access channels. The segregate and block restrictions, which included a requirement that a request for access be in writing, and which allowed for up to 30 days' delay in blocking orunblocking a channel, were not sufficiently protective of adults' speech/viewing interests to be considered either narrowly or reasonably tailored to serve the government's compelling interest in protecting children.
[Footnote 62] Young v. American Mini Theatres, 427 U.S. 50 (1976). Four of the five majority Justices thought the speech involved deserved less First Amendment protection than other expression, id. at 63-71, while Justice Powell, concurring, thought the ordinance was sustainable as a measure that served valid governmental interests and only incidentally affected expression. Id. at 73. Justices Stewart, Brennan, Marshall, and Blackmun dissented. Id. at 84, 88. Young was followed in City of Renton v. Playtime Theatres, 475 U.S. 41 (1986), upholding a city ordinance prohibiting location of adult theaters within 1,000 feet of residential areas, churches, or parks, and within one mile of any school. Rejecting the claim that the ordinance regulated content of speech, the Court indicated that such time, place and manner regulations are valid if ''designed to serve a substantial governmental interest'' and if ''allow[ing] for reasonable alternative avenues of communication.'' Id. at 39. The city had a substantial interest in regulating the ''undesirable secondary effects'' of such businesses. And, while the suitability for adult theaters of the remaining 520 acres within the city was disputed, the Court held that the theaters ''must fend for themselves in the real estate market,'' and are entitled only to ''a reasonable opportunity to open and operate.'' Id. at 42.
[Footnote 64] Erznoznik v. City of Jacksonville, 422 U.S. 204 (1975). Dissenting from Justice Powell's opinion for the Court were Chief Justice Burger and Justices White and Rehnquist. Id. at 218, 224. Only Justice Blackmun, of the Justices in the majority, remains on the Court in 1992, and it seems questionable whether the current Court would reach the same result.
[Footnote 66] 111 S. Ct. 2456 (1991).
[Footnote 67] Id. (Chief Justice Rehnquist, joined by Justices O'Connor and Kennedy).
[Footnote 68] Id. at 2468 (Justice Souter).
[Footnote 69] Id. at 2463 (Justice Scalia). The Justice thus favored application of the same approach recently applied to free exercise of religion in Employment Division v. Smith, 494 U.S. 872 (1990).
[Footnote 70] Earlier cases had established as much. See California v. LaRue, 409 U.S. 109, 118 (1972); Southeastern Promotions v. Conrad, 420 U.S. 546, 557 -58 (1975); Doran v. Salem Inn, 422 U.S. 922, 932 (1975); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981); New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 716 , 718 (1981). Presumably, then, the distinction between barroom erotic dancing, entitled to minimum protection, and social ''ballroom'' dancing, not expressive and hence not entitled to First Amendment protection (see City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989)), still hangs by a few threads. Justice Souter, concurring in Barnes, 111 S. Ct. 2468, recognized the validity of the distinction between ballroom and erotic dancing, a validity that had been questioned by a dissent in the lower court. Miller v. Civil City of South Bend, 904 F.2d 1081, 1128-29 (7th Cir. 1990) (Easterbrook, J.).
[Footnote 71] Although Justice Souter relied on what were essentially zoning cases (Young v. American Mini Theatres and Renton v. Playtime Theatres) to justify regulation of expression itself, he nonetheless pointed out that a pornographic movie featuring one of the respondent dancers was playing nearby without interference by the authorities. This suggests that, at least with respect to direct regulation of the degree of permissible nudity, he might draw a distinction between ''live'' and film performances even while acknowledging the harmful ''secondary'' effects associated with both.
[Footnote 72] The Court has not ruled directly on such issues. See Southeastern Promotions v. Conrad, 420 U.S. 546 (1975) (invalidating the denial of use of a public auditorium for a production of the musical ''Hair,'' in the absence of procedural safeguards that must accompany a system of prior restraint). Presumably the Barnes plurality's public morality rationale would apply equally to the ''adult'' stage and to the operatic theater, while Justice Souter's secondary effects rationale would not. But the plurality ducked this issue, reinterpreting the lower court record to deny that Indiana had distinguished between ''adult'' and theatrical productions. 111 S. Ct. at 2459 n.1 (Chief Justice Rehnquist); id. at 2464 n.2 (Justice Scalia). On the other hand, the fact that the state authorities disclaimed any intent to apply the statute to theatrical productions demonstrated to dissenting Justice White (who was joined by Justices Marshall, Blackmun, and Stevens) that the statute was not a general prohibition on public nudity, but instead was targeted at ''the communicative aspect of the erotic dance.'' 111 S. Ct. at 2473.
[Footnote 73] The Court had only recently affirmed that music is entitled to First Amendment protection independently of the message conveyed by any lyrics (Ward v. Rock Against Racism, 491 U.S. 781 (1989)), so it seems implausible that the Court is signalling a narrowing of protection to only ideas and opinions. Rather, the Court seems willing to give government the benefit of the doubt when it comes to legitimate objectives in regulating expressive conduct that is sexually explicit. For an extensive discourse on the expressive aspects of dance and the arts in general, and the striptease in particular, see Judge Posner's concurring opinion in the lower court's disposition of Barnes. Miller v. Civil City of South Bend, 904 F.2d 1081, 1089 (7th Cir. 1990).