Jacobellis v. Ohio/Dissent Harlan

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MR. JUSTICE HARLAN, dissenting.

While agreeing with my Brother BRENNAN's opinion that the responsibilities of the Court in this area are no different from those which attend the adjudication of kindred constitutional questions, I have heretofore expressed the view 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. See my opinion in Roth v. United States, 354 U.S. 476, 496; cf. my opinion in Manual Enterprises, Inc., v. Day, 370 U.S. 478. While, as correctly said in MR. JUSTICE BRENNAN's opinion, the Court has not accepted that view, I nonetheless feel free to adhere to it in this still developing aspect of constitutional law.

The more I see of these obscenity cases, the more convinced I become that, in permitting the States wide, but not federally unrestricted, scope in this field, while holding the Federal Government with a tight rein, lies the best promise for achieving a sensible accommodation between [p204] the public interest sought to be served by obscenity laws (cf. my dissenting opinion in Bantam Books, Inc., v. Sullivan, 372 U.S. 58, 76, 77) and protection of genuine rights of free expression.

I experience no greater ease than do other members of the Court in attempting to verbalize generally the respective constitutional tests, for in truth the matter, in the last analysis, depends on how particular challenged material happens to strike the minds of jurors or judges, and ultimately those of a majority of the members of this Court. The application of any general constitutional tests must thus necessarily be pricked out on a case-by-case basis, but, as a point of departure, I would apply to the Federal Government the Roth standards as amplified in my opinion in Manual Enterprises, supra. As to the States, I would make the federal test one of rationality. I would not prohibit them from banning any material which, taken as a whole, has been reasonably found in state judicial proceedings to treat with sex in a fundamentally offensive manner, under rationally established criteria for judging such material.

On this basis, having viewed the motion picture in question, I think the State acted within permissible limits in condemning the film, and would affirm the judgment of the Ohio Supreme Court.