First Amendment Protection For Sexually Graphic Materials

First Amendment Protection For Sexually Graphic Materials

I've been trying to track down the first case where anyone made the argument that the First Amendment protected sexually explicit materials. As near as I can tell, it is Hannegan v. Esquire, Inc., 327 U.S. 146 (1946). Even this case barely does so.

The post office at the time extended second class mailing privileges to magazines that were "originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers." In short, strictly advertising flyers had to be sent fourth class--the second class mail rate was to promote something that has a value above the strictly commercial.

Esquire magazine was denied the second class mailing rate because it had a lot of

smoking-room type of humor, featuring, in the main, sex. Some witnesses found the challenged items highly objectionable, calling them salacious and indecent. Others thought they were only racy and risque. Some condemned them as being merely in poor taste. Other witnesses could find no objection to them.

I suspect that these days, the objectionable materials would be too tame to put on television. The government did not claim that Esquire qualified as obscene; that would have made it unmailable. More importantly, it would have been outside the protections of the First Amendment, which has never been considered to protect obscene material. Justice Douglas wrote the opinion arguing that for materials that were not obscene, the government had an obligation to give equal protection of the law.

It is amazing how rapidly our understanding of the First Amendment's protections of freedom of the press has changed--from arguing whether somewhat salacious materials enjoyed the same right to a governmental subsidy as National Geographic, and upholding a state law that punished racists for libeling a race, as happened in Beauharnais v. Illinois, 343 U.S. 250 (1952), to finding that because some virtual child pornography might have "serious literary, artistic, political, or scientific value" the statute prohibiting it was unconstitutional.

UPDATE: I should explain that the late attempt at arguing that sexually explicit materials are constitutionally protected is in stark contrast to early points of view. There are constitutional commentaries by William Rawle and Joseph Story that are quite clear that the freedom of the press is a guarantee of no prior restraint. Similarly, with later Associate Justice James Wilson's comments about freedom of the press and libel during the ratification debate in Pennsylvania [Elliot’s Debates, 2:449]. Rawle's treatment is a bit more crisp:

But the liberty of speech and of the press may be abused, and so may every human institution. It is not, however, to be supposed that it may be abused with impunity. Remedies will always be found while the protection of individual rights and the reasonable safeguards of society itself form parts of the principles of our government. A previous superintendency of the press, an arbitrary power to direct or prohibit its publications are withheld, but the punishment of dangerous or offensive publications, which on a fair and impartial trial are found to have a pernicious tendency, is necessary for the peace and order of government and religion, which are the solid foundations of civil liberty. [William Rawle, A View of the Constitution, 2nd ed. (Philadelphia: Philip H. Nicklin, 1829), 123-4.]

You could be punished after the fact for what William Blackstone characterized as "improper, mischievous, or illegal" speech, and until the Sedition Act of 1798, there didn't seem to be much argument about that. The Sedition Act was fundamentally constitutional; it punished only "false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States...." The problem was that Federalist judges and juries punished mere opinion, skipping over the requirement that a statement be "false." Still, in the digging that I have done, I have yet to find any of the seeming absolutists of the post-Sedition Act period arguing that sexually graphic materials were protected free speech. The focus is on political speech.

What impresses me is how even a lawyer defending a person charged with blasphemy in 1834 Boston admitted that "grossly indecent pictures and descriptions" did not enjoy the protection of the First Amendment. Andrew Dunlap did not even try to argue that freedom of the press protected his client's publications; instead, he argued that the First Amendment's protection of religious beliefs (and the analog in the Massachusetts Constitution) overrode a blasphemy law. He never argued that freedom of the press protected blasphemous publications.