1967 May 8

“Redrup:” Supreme Court Gives Up Trying to Define Obscenity

 

The Supreme Court overturned the conviction of Robert Redrup, clerk at a newstand in New York City’s Times Square (along with the defendants in related cases, on this day as a violation of the First Amendment in Redrup v. State of New York.

The decision was another chapter in the history of the Supreme Court’s attempt to define obscenity and determine its constitutionality. Justice William Brennan’s opinion in the court’s landmark decision in Roth v. United States on June 24, 1957 contained a definition of obscenity that included several major ambiguities. As a result, the court began issuing unsigned per curiam decisions with no opinion. In a six-year period, the court issued 31 such decisions. In Redrup, each justice developed his own definition of obscenity. (See the discussion in Geoffrey Stone, Sex and the Constitution, cited below). A majority of the Justices could never agree on a definition, even though they agreed that at least some forms of obscenity were protected by the First Amendment.

The battle continued, however. See particularly the Court’s decision in Miller v. California on June 21, 1973, which enunciated the “Miller Test” for determining whether a form of expression was outside the protection of the First Amendment.

The Court: “We have concluded, in short, that the distribution of the publications in each of these cases is protected by the First and Fourteenth Amendments from governmental suppression, whether criminal or civil, in personam or in rem.”

Read: Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (2017) (pp. 283-284 on Redrup)

Learn more about the myths and facts about pornography: Marcia Pally, Sense and Censorship: The Vanity of the Bonfires (1991), http://mediacoalition.org/files/Sense-and-Censorship.pdf

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