Stanley v. Georgia

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394 U.S. 557 (1969), argued 14–15 Jan. 1969, decided 7 Apr. 1969 by vote of 9 to 0; Marshall for the Court. From 1957, when the Supreme Court decided Roth v. United States, to 1973, when it decided Paris Adult Theatre I v. Slaton and Miller v. California, obscenity doctrine was in disarray. Different pluralities of the Court used different definitions and employed widely divergent views about the permissibility and scope of obscenity law in light of First Amendment limitations. In Stanley v. Georgia, the Court decided that the purely private possession in the home of even legally obscene material could not be punished. Justice Thurgood Marshall's opinion is unclear about the basis for this conclusion, subject under one interpretation as being based primarily on Fourth Amendment restrictions on search and seizure, under another as based on freedom of speech and the press, and under still another as based on a more broadly premised right of privacy that makes it impermissible for the state to restrict conduct affecting no one except the actor.

In part because of this uncertainty, question remains about the vitality of Stanley as good law. Insofar as it is based on a right of privacy, its holding has been undercut by subsequent decisions, particularly Bowers v. Hardwick (1986), which allowed state regulation of private sexual conduct. Insofar as the decision is about the limits of obscenity law, there is some question whether the 1973 decisions in Miller and Paris have rendered it obsolete. In any event the Court is clearly disinclined to extend its implications. In Obsborne v. Ohio (1990) Justice Byron White for the Court held Stanley inapplicable to private possession of child pornography and warned that “Stanley should not be read too broadly.”

Frederick Schauer

Subjects: Law.

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