Home » Articles » Case » Obscenity and Pornography » Kaplan v. California (1973)

Written by John R. Vile, last updated on September 19, 2023

Select Dynamic field

Kaplan v. California, 413 U.S. 115 (1973), a case decided by the Supreme Court in conjunction with Miller v. California (1973) and Paris Adult Theatre I v. Slaton (1973), affirmed that a book, even without illustrations, can be obscene and thus unprotected by the First Amendment.


Bookstore owner convicted of obscenity

After an undercover police officer purchased the book Suite 69 at the adult Peek-A-Boo bookstore in Los Angeles, a jury convicted the proprietor of the bookstore of obscenity under California law, and a California appellate court affirmed the conviction.


Court remanded case to lower court to determine if the law was consistent with obscenity standards

Chief Justice Warren E. Burger wrote the U.S. Supreme Court decision vacating the case and remanding it to the state appellate court to determine whether the California law under which Kaplan had been convicted was consistent with obscenity standards established in the companion cases, Miller and Paris Adult Theatre I. The Court affirmed that books could be deemed obscene under these precedents.


Burger described the book at issue as being made up “entirely of repetitive descriptions of physical, sexual conduct, ‘clinically’ explicit and offensive to the point of being nauseous.” Observing that the case “squarely presents the issue of whether expression by words alone can be legally ‘obscene’ in the sense of being unprotected by the First Amendment,” Burger observed that the Court’s definition of obscenity made no distinction “as to the medium of the expression.” He noted that in Mishkin v. NewYork (1966) the Court had concluded that a book was obscene, and he cited a large number of cases, most decided by one-sentence per curiam opinions, in which the Court had reversed convictions on obscenity.


Acknowledging that books should have “a different and preferred place in our hierarchy of values,” Burger further observed that “this generalization, like so many, is qualified by the book’s content” and that the First Amendment did not protect obscenity. He went on to note that “for good or ill, a book has a continuing life.” Moreover, it could end up in the hands of young people. He did not find that states had to wait on experts to produce empirical data “before enacting controls of commerce in obscene materials.”


The companion cases established that “the commercial exposure and sale of obscene materials to anyone, including consenting adults, is subject to state regulation.” In examining the trial court proceedings, Burger concluded that the state was not required to apply “national” pornography standards. Although the defense could introduce expert testimony, the introduction of the materials in and of themselves could be sufficient for a jury to make such a determination without separate “expert” testimony from the prosecution.


Referring to his dissent in the companion Miller case, Justice William O. Douglas wanted to remand the case for dismissal because he found the term obscenity “too vague to satisfy the requirements of due process.”


Justice William J. Brennan Jr., joined by Justices Potter Stewart and Thurgood Marshall, wrote a dissent, indicating that he would reverse the lower-court judgment on the basis of reasons he had articulated in his dissents in the companion cases.


How To Contribute

The Free Speech Center operates with your generosity! Please donate now!