Jacobellis v. Ohio: Case, Summary & Facts

Instructor: Kenneth Poortvliet
Free speech is an important and fundamental right found in the Bill of Rights. In this lesson we will explore the limits of free speech when we analyze the Supreme Court's decision in ''Jacobellis v. Ohio''.

What is Obscenity?

At the founding of this country, most depictions of sexuality were considered obscene. With changing attitudes toward sexuality, came changing definitions of obscenity. Should it be that way? Or should we just pick a definition and stick with it? This is the dilemma the Supreme Court faced in Jacobellis v. Ohio.

Facts of the Case

Nico Jacobellis, was a theater manager on the outskirts of Cleveland Ohio. In violation of the law, he showed a film that had been banned as being obscene. The judge found him guilty and fined him $2,500. The Ohio Supreme Court upheld his conviction, and he appealed.


In the 1960's and 1970's, the Supreme Court reviewed many cases dealing with the definition of obscenity. This was a reflection of the times as outside the chambers of the nation's highest, court the sexual revolution raged on. It was a war of culture and values dividing the nation, pitting the new against the old and progressives against traditionalists. Both sides claiming the First Amendment's free speech clause, which protected social, political and artistic expression as a form of speech, was on their side.

Even inside those hallowed chambers, a skirmish broke out over the definition of a word. The division was deep, and the inability to form consensus fractured the traditional battle lines of the jurists. No majority rational emerged, and no opinion got more than two supporting justices.

The disagreement didn't begin there but in a previous ruling on obscenity in Roth v. United States (1957). In that case, the Court overturned a 100-year-old definition called the Hicklin test which stated something was obscene if it tended ''to deprave and corrupt those whose minds are open to such immoral influences'' regardless of its artistic or literary merit.

The Supreme Court in Roth created a new test that said material is obscene if it had a ''dominant theme taken as a whole appeals to the prurient interest of the average person, applying contemporary community standards.'' It was these changing standards, as reflected in the turmoil being played out throughout the country, that created difficulty in deciding what was obscene.

Issue and Decision

The Supreme Court was asked whether the banned movie in question was obscene, and whether the obscenity definition the Court established in Roth applied to the present case. The Court held that the movie was not obscene and reaffirmed that the Roth definition was controlling.

Justice William Brennan wrote the opinion and was joined only by Justice Arthur Goldberg. Brennan started by acknowledging the difficulty of the task because applying the definition of obscenity ''requires ascertainment of the 'dim and uncertain line' that often separates obscenity from constitutionally protected expression'', he said partially quoting the Court's decision in Bantam Books, Inc., v. Sullivan.

He then reaffirmed the obscenity definition in Roth and stated that obscenity is unprotected by the First Amendment when it is ''utterly without redeeming social importance,'' and that the mere depiction of sex in the film is not, in an of itself, a sufficient reason to deny it the protection of free speech.

The decision also clarified that the ''community standard'' in the definition was not exclusively a local one, but one of the nation. ''It is, after all, a national Constitution we are expounding,'' Brennan quipped.

A Court Divided

The vote was 6 to 3, with seven separately written opinions, and no more than two justices joined together in a single opinion. Even Justice Goldberg, who joined with Brennan, wrote separate concurring opinion. Goldberg added his view that the film's depiction of sex was a minor part of the story. He said, ''Only a censor's alert would make an audience conscious that something 'questionable' is being portrayed.''

Justice Hugo Black, joined by Justice William O. Douglas, made his well-known view that the First Amendment should not allow any form of censorship.

Chief Justice Earl Warren and Justice Tom Clark dissented and lamented the fractures in the court which resulted in a confusing state of the Court's obscenity evaluation. He reasoned that the Ohio law fit within their ruling in ''Roth'', and that local communities are in the best position to decide such things.

Justice John Harlan II also dissented agreeing in spirit with Warren and Clark by stating 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.''

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