Warren Burger's Supreme Court is winding up its current term with a flourish. Driving to clear the court calendar by July 8, when they face the momentous confrontation between the President and the Watergate prosecutors, the Justices last week handed down rulings in half a dozen important cases. All of them involved the First Amendment right of free expression. The nation's press may well be most deeply affected by the Tornillo decision sharply limiting citizens' right of reply to critical editorials (see cover story page 68).
The other decisions:
1. BACK TO PORNOGRAPHY. It was only a year ago that the Supreme Court, in Miller v. California, laid down one more set of guidelines for legislators and prosecutors dealing with illegal obscenity. The hope was that by using those guidelines, local judges and juries, exercising local standards of taste, would be able to dispose of a vast and growing glut of pornography cases. That hope was short-lived. Merely by considering the case of Jenkins v. Georgia, the court was, in effect, admitting that it had yet to find an escape from its unwanted role as the nation's chief censor. Once more the Justices found themselves reviewing a movie. This time, in a unanimous decision, they overturned the conviction of a Georgia theater manager who was found guilty of exhibiting obscenity because he had shown the 1971 film Carnal Knowledge.
The movie deals with the sex lives of two old college chums, and it includes shots of Actress Ann-Margret in the buff. To a Georgia jury, the film was hard-core porn. The high court Justices, who had it run off in their own private screening room, firmly disagreed. Mere "depiction of a woman with a bare midriff," said Justice William Rehnquist speaking for the court, would not disqualify a film from the protection of the First Amendment. While the Carnal Knowledge narrative fairly seethes with sex, he noted, "there is no exhibition of the actors' genitals, lewd or otherwise, during these scenes." Local juries, Rehnquist concluded, should not assume that they have been given "unbridled discretion" in judging obscenity cases.
Though the Justices all agreed that Carnal Knowledge was permissible softcore porn, they are still split on the basic strategy for dealing with obscenity. Justice William Brennan, who feels that Government would do better to abandon the field altogether, filed a brief opinion gloomily noting that the court had once again fallen back into "the mire of case-by-case determinations of obscenity." Brennan's I-told-you-so was aimed mainly at Chief Justice Warren Burger, who wrote the previous porn opinions that encouraged local courts and prosecutors to take off after whatever books, movies and plays seemed offensive when judged by "contemporary community standards."
This time Justice Rehnquist tried again to make the high court's definition of hard-core porn sharp and clear. Communities, he repeated, can prosecute "representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, [or] masturbation, excretory functions and lewd exhibition of the genitals."