THE FIRST AMENDMENT IN THE 1950s

A Lasting Controversy

The First Amendment to the Constitution forbids Congress from making any law "abridging the freedom of speech, or of the press," The courts have traditionally ruled, however, that the framers of the Constitution never intended to protect all forms of expression. Some works, in fact, are considered so offensive to society's standards of decency that they are banned from any public display. How to tell the difference between a work that is unpopular but tolerable and one that is completely unacceptable has been an ongoing concern of the American court system. During the 1950s the Supreme Court made several significant decisions regarding the controversy.

Is Sacrilege Illegal?

In 1952, in the case of Burstyn v. Wilson, the Court struck down the state of New York's ban on the film The Miracle. The Italian film told the story of a young peasant girl who is impregnated by a hobo she mistakes for Saint Joseph; she goes mad and claims she is the Virgin Mary about to give birth to Jesus, The New York State Board of Regents ruled that the exhibitor who had shown the film had committed sacrilege. The appeal reached the Supreme Court, which ruled that "under the First and Fourteenth Amendments a state may not ban a film on the basis of a censor's conclusion that it is 'sacrilegious.'" This decision marked the first instance of a film had being extended the full protection of the First Amendment.

Two Cases of Indecency

On 24 June 1957 the Court handed down decisions in two cases related to the free-expression issue. In one, Alberts v. California, salesman David Alberts had been convicted under a California law prohibiting "lewdly keeping for sale" and advertising indecent books; he claimed that his Fourteenth Amendment guarantee of due process of law had been ignored. In the other, more important case, Roth v. United States, Samuel Roth, a pornographic-book seller, argued that not only had his right to due process been denied, but that the laws against obscene material violated the First Amendment and its guarantee of free expression,

No Protection

The First Amendment issue was the most important feature of either case. Justice William Brennan, in the majority opinion, wrote that "All ideas having even the slightest redeeming social importance … have the full protection of the guarantees [of the First Amendment] … But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." Having thus affirmed government's ability to restrict obscenity, the justice turned to the thornier issue of definitions.

A New Standard

Brennan suggested the following test of obscenity: "Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests [arouses lust]." The standard, however, raised as many questions as it answered. Who was the average person? What was his community, exactly? What specific standards was he to apply? The dissenting opinion, written by Justice William Douglas, warned that the standard could lead to "community censorship in one of its worst forms." Douglas wrote, "I have the same confidence in the ability of our people to reject noxious literature as I have in their capacity to sort out the true from the false in theology, economics, politics or any other field"—in other words, not much. Still, the Roth standard set the patterns for the future definitions of obscenity.

Ideas Cannot Be Banned

The Court had the opportunity to test the Roth standard in 1959, in the case of Kingsley International Pictures Corp. v. Regents. The previous year the New York Board of Regents had ruled that a film version of D. H. Lawrence's Lady Chatterley's Lover was immoral because it portrayed adultery as a "desirable, acceptable, and proper pattern of behavior." The Supreme Court unanimously overturned the state's ban. For the Court the presence of serious ideas, even those contrary to the public morality, was enough to lift a work above" those that merely arouse lust.

No Solution in Sight

With respect to the free-expression guarantees of the First Amendment, the Court ended the decade roughly as it began. There were still limits on free expression and still no successful definition of those limits. The tension, possibly unresolvable, between the public danger posed by immoral works and the public danger posed by banning them remained a controversial issue for American courts.