*1 KOIS WISCONSIN 26, 1972 No. 71-5625. Decided June Per Curiam. of vio- trial court was convicted
Petitioner prohibiting statute a Wisconsin lating picture, matter, written or indecent “lewd, (1) (a) 944.21 § film.” Wis. Stat. recording, sound one-year terms consecutive He was sentenced (1969). each Reformatory fined Bay on the Green upheld of Wisconsin Supreme Court counts. The of two he had been the contention conviction violation freedom of the deprived of 467. 2d 2d 188 N. W. 51 Wis. news- underground publisher Petitioner was the published issue Kaleidoscope. paper called “The story newspaper carried May 1968, that an interior on Dollar Photos” Thousand Hundred One of the arrest an account story itself was page. pos- charge on a Kaleidoscope’s photographers one of pic- relatively small Two of obscene material. session embracing man and nude woman a nude tures, showing *2 were accompanied the article and sitting in a position, seized from “similar” to those the article as described photog- that the The article said photographer. the attorney’s had office, waiting in the district rapher, The article $100,000. be at might heard that bail set originally been set say on to that bail had in fact went photog- to and that later the $250, at then raised $100, own rapher recognizance. had been released on his were de- police detail tactics that purported article to Kaleidoscope and scribed as an effort to “harass” staff. held that (1957),
Roth v. United 354 U. S. Four obscenity not under the First or protected ob may be considered teenth Amendments. Material con applying average person, scene when “to the theme temporary community the dominant standards, the of the material taken as a whole test, enunciating interest.” Alabama, quoted in Roth from Thornhill v. 101-102: U. S. of the guaran- “The freedom of the least the by teed Constitution embraces at liberty all matters publicly truthfully to discuss or fear public previous concern restraint without punishment. of the subsequent exigencies period colonial and the efforts to secure freedom oppressive developed from a broad- administration adequate conception ened of these liberties supply need for and educa- information significant tion with issues supplied.) (Emphasis times. . . fairly said, either consider- do not think it can
We as it record appears article before the ing publi- mere vehicle was a the article court, in the from Voltaire A quotation pictures. cation redeem an constitutionally not a book flyleaf were pictures but if these publication, otherwise under- we do one seized—and to the indeed similar are relevant differently to contend stand the State — unnecessary to it We find article. to the constitutionally pro- could the State consider themselves, pictures hibit they appeared in which in the context because rationally to an article related were clearly itself was Alabama, supra. The Thornhill v. pauperis and the proceed leave
motion for *3 forma The convic- granted. certiorari are for writ of petition reversed. therefore be one must tion on count Kaleidoscope published a issue, August In its one of which poems, of consisting spread two-page peti- count of Poem.” second was entitled “Sex of was for the dissemination tioner’s conviction an undis- poem containing poem. the author’s of play-by-play account frank, guisedly the Both But, as intercourse. of sexual recollection synony- obscenity are not and “sex emphasized, literature art, e. in sex, g., of portrayal . The mous. . . deny is not itself sufficient works, and scientific of freedom of material the constitutional reviewing A court 354 U. press.” and material, at the context look must, necessity, as its content. well content and its poem’s considering
In this in the interior poems selection amid a placement of the ear- it bears some we believe newspaper, a ear- art. While such at serious marks inevitably finding a guarantee are not marks many would conclude this case obscenity, element grasp, reach exceeded author's or not assessing be considered must prurient appeals material “dominant” community “contemporary standards,” interest. While room 489, must leave S., at Roth United un- there is an and while judgment, for some latitude whole, as a in the test element deniably subjective of constitutional a question the theme is “dominance” of to the conclusions weight fact. due Giving Court of Wiscon- Supreme of the trial court and that the dominant believe that it can be said sin, we do not interest. The poem theme of this count, therefore, must also on the second judgment reversed.
Reversed. in the judgment. Mr. Justice Stewart concurs Mr. Justice Douglas, concurring judgment. I judgment logic, history, concur because neither plain meaning English language sup- port obscenity exception this Court has engrafted onto the First case, moreover, testimony
This is further to the mo- placed rass in which this Court has itself the area of obscenity. prison Men are sent under definitions *4 they which cannot on which understand, and lower courts members this Court cannot agree. Here, Court is forced to examine the thematic content of the newspapers two publication petitioner of which prosecuted order to hold are constitu- tionally protected. Highly subjective inquiries such as this do not lend themselves a workable or predictable rule of law, should the basis of fines or imprisonment. the vague umbrella of obscenity laws was
used in to run a radical newspaper out of and a two-year sentence impose business and to If continue obscenity laws upon publisher. fine enforcement, the vehicle then this uneven and uncertain any unpopular suppression for the has been found thus be expression of free tract. The guarantee only embrace diluted and in its stead discourse will Court. approval which has the of five members Bill of now that prospect imaginary is of the Four- Rights, applicable States Amendment, coming to be a “watered down” says only not what it but what a ma- version, meaning jority proper. of this Court fit and thinks