378 U.S. 184 (1964)
Nico Jacobellis served as manager of a motion picture theater in Cleveland Heights, Ohio.1
He was convicted on two counts of possessing and exhibiting an obscene film in violation of Ohio Revised Code (1963 Supp.), § 2905.34.2 He received a fine of $500 on the first count and $2,000 on the second count, along with a sentence to the workhouse if the fines went unpaid.3 His conviction came after a trial by a court of three judges following his waiver of a jury trial.4
The film at issue was the French motion picture “Les Amants,” also known as “The Lovers.”5 It depicts a woman who grows bored with her life and marriage before leaving her husband and family for a young archaeologist.6 An explicit love scene appears in the final reel.7 The film received favorable reviews in several national publications and was ranked by at least two prominent national critics among the best films of its production year.8 It played in roughly one hundred major cities across the United States, among them Columbus and Toledo in Ohio.9
An intermediate appellate court affirmed the conviction in a decision reported at 115 Ohio App. 226, 175 N. E. 2d 123.10 The Supreme Court of Ohio then affirmed that judgment in 173 Ohio St. 22, 179 N. E. 2d 777.11 The United States Supreme Court noted probable jurisdiction over the appeal under docket number 371 U. S. 808 before restoring the case to the calendar for reargument at 373 U. S. 901.12
Whether the motion picture "Les Amants" is obscene and therefore unprotected by the First and Fourteenth Amendments?13
Under the Roth test, material is obscene only if to the average person applying contemporary community standards the dominant theme of the material taken as a whole appeals to prurient interest.14 The material must also be utterly without redeeming social importance.15 Material with literary, artistic, or social value may not be proscribed even if it deals with sex.16
No. Nico Jacobellis managed a Cleveland Heights theater and was convicted for possessing and exhibiting the French film Les Amants.17 The film portrays a woman bored with her marriage who leaves her husband and family for a young archaeologist.18 An explicit love scene appears only in the final reel.19 The film received favorable reviews in national publications and was ranked by at least two prominent national critics among the best films of its year.20
It was exhibited in approximately one hundred major cities including Columbus and Toledo, Ohio.21 Because the film possesses redeeming social importance through its narrative treatment of marital unhappiness and romantic choice and does not deviate substantially from customary limits of candor, the Roth standard is not satisfied.22
The motion picture Les Amants is not obscene and the conviction must be reversed.23
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Justice Stewart concurred in the judgment.24 He reached the conclusion that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography.25 He explained that this conclusion was confirmed at least by negative implication in the Court’s decisions since Roth and Alberts.26
Although he would not attempt today to define further the kinds of material embraced within that shorthand description, he knew it when he saw it.27 The motion picture involved in this case was not hard-core pornography.28
Justice Goldberg concurred.29 He viewed the film and added that the love scene deemed objectionable is so fragmentary and fleeting that only a censor’s alert would make an audience conscious that something questionable is being portrayed.30 Except for this rapid sequence, the film concerns itself with the history of an ill-matched and unhappy marriage, a familiar subject in old and new novels and in current television soap operas.31
He fully agreed with Justice Brennan but also concluded that adherence to the principles stated in Joseph Burstyn, Inc. v. Wilson requires reversal.32 There is no justification for making an exception to the rule of free expression for motion pictures.33
Whether the Supreme Court must conduct an independent review of the facts when determining whether material is obscene under the Constitution?34
Yes. Jacobellis was subjected to criminal conviction for disseminating a work of expression.37 He challenged that conviction as a deprivation of rights guaranteed by the First and Fourteenth Amendments.38 The question whether a particular work is obscene necessarily implicates an issue of constitutional law.39
That issue must ultimately be decided by the Court itself.40 Independent review is required just as it is in other areas involving constitutional rights under the Due Process Clause.41 In those areas the Court examines statements and circumstances to determine whether they are protected by First Amendment principles incorporated through the Fourteenth Amendment.42
The Supreme Court must conduct an independent constitutional judgment on the facts to determine whether the material is protected.43
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Justice Harlan agreed that the responsibilities of the Court in this area are no different from those attending the adjudication of kindred constitutional questions.44 He maintained that the States are constitutionally permitted greater latitude in determining what is bannable on the score of obscenity than is so with the Federal Government.45 He would apply a rationality test to state determinations while holding the federal government to the Roth standards as amplified in his Manual Enterprises opinion.46
On this basis, having viewed the motion picture, he thought the State acted within permissible limits in condemning the film.47
Whether the "contemporary community standards" component of the obscenity test refers to national standards or to the standards of the particular local community where the prosecution arises?48
The constitutional status of allegedly obscene material must be determined on the basis of a national standard.49 A local definition would produce the intolerable consequence of denying some sections of the country access to material deemed acceptable elsewhere.50 It would also allow constitutional limits of free expression to vary with town or county lines.51
Yes. The conviction arose in Cleveland Heights, Ohio.52 Yet the film was shown without successful prosecution in many other cities across the country.53 Allowing each local community to set its own standard would deter dissemination everywhere once one locality obtained a conviction.54 It would restrict public access to forms of expression that the state could not constitutionally suppress directly.55 The Court therefore reaffirms that the Roth test employs a national standard under the federal Constitution.56
The contemporary community standards component refers to national standards.57
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Joined by The Chief Justice
Justice Clark joined the Chief Justice in dissenting from the judgment.58 He believed that when the Court said in Roth that obscenity is to be defined by reference to community standards, it meant local community standards rather than a national standard.59
There is no provable national standard.60 A community approach may result in material being proscribed as obscene in one community but not in another, and that is to be expected given the diversity of communities.61
He would have affirmed the judgment under a sufficient evidence standard of review once a finding of obscenity had been made below under a proper application of the Roth test.62 He would limit the Court to considering whether there is sufficient evidence in the record upon which a finding of obscenity could be made.63