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The Supreme Court ruled in Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) that there is no First Amendment right to show obscene films.


Theatres said First Amendment protected showing obscene films to consenting adults

Lewis Slaton, the Fulton County, Georgia, district attorney, sought a court order to prevent the proprietors of two “adult” theaters from showing Magic Mirror and It All Comes Out in the End, which allegedly violated state obscenity laws. The defendants responded that the First Amendment protected showing such films to consenting adults.


Supreme Court said films could not be shown if they were obscene

The trial court judge agreed with the defendants and dismissed the complaint. On appeal, the Georgia state supreme court unanimously overruled the lower court, finding the films to be “hard core pornography.” The U.S. Supreme Court upheld the state supreme court’s ruling in a 5-4 vote and remanded the case to determine whether the films were obscene according to the standard set forth in Miller v. California (1973), a decision announced the same day.


Court said obscenity is not protected speech

In the opinion for the Court, Chief Justice Warren E. Burger emphasized that obscenity is not protected speech and that the right to privacy does not apply to films exhibited in public. He added that states have a legitimate interest in regulating commerce in obscene materials in order to prevent crime and improve the community. He also reasoned that the state was not obliged to offer conclusive proof of a connection between obscene materials and social harm.


Dissenters thought Court could not suppress obscenity for consenting adults

Justice William J. Brennan Jr., joined by Justices Potter Stewart and Thurgood Marshall, dissented, saying that the Court could not formulate an effective standard to distinguish between obscene and nonobscene materials. Although Brennan had authored the Court’s opinion in Roth v. United States (1957) and later the plurality opinion in Memoirs v. Massachusetts (1966), important obscenity cases, Brennan said he could no longer support obscenity prosecutions for activities involving consenting adults. He feared that efforts to suppress allegedly obscene materials would also suppress protected expression. Brennan concluded that government regulation should be confined to protecting children and nonconsenting adults.


In a separate dissent, Justice William O. Douglas restated his belief that the First Amendment protected all forms of expression, including obscenity.


Impact of the decision is uncertain

The practical impact of Paris Adult Theatre I is uncertain. The years following the decision saw an exponential increase in the pornography business and a gradual decrease in obscenity prosecutions. Experts now estimate that the pornography industry annually grosses more than $15 billion in the United States and $56 billion globally. There has been no significant increase in convictions for obscenity or in charges brought against distributors of such materials. Many cities have given up on banning sexually explicit businesses and have turned instead to zoning laws as a means to control such commerce. The laws restrict these businesses to specific areas in communities. Nonetheless, although only a narrow majority of the Court ruled in favor of obscenity laws in Paris Adult Theatre I and Miller, these cases have guided court decisions since.


This article was originally published in 2009. Timothy J. O’Neill is Emeritus Professor and Holder of the Tower-Hester Chair in Politics at Southwestern University, Georgetown, Texas. He is the author of several articles on the First Amendment, concentrating on religious liberty and church/state relations, as well as teaching constitutional liberty courses for 40 years.


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