In Ward V. Illinois, 1519 the Court upheld obscenity convictions based on two publications depicting sadomasochistic sexual acts. The defendant had contended that these types of acts were not enumerated in Miller as possible patently offensive depictions of specifically defined sexual conduct. 1520

The Court ruled in Ward that the sexual acts mentioned in Miller were merely examples and not intended as an exhaustive compilation of the sexual acts whose depiction, if patently offensive, is subject to regulation. 1521

Sweeton, 366 So. 2d 710(Ala. 1979) (film "The Opening of Misty Beethoven." Numerous scenes of explicit sexual conduct between members of the same sex and members of the opposite sex including cunnilingus, intercourse, masturbation and fellatio in repetitive displays.); McKinney v. City of Birmingham, 296 So.2d 197 (Ala. 1973) (films graphically depicting nude men and women with their genitals fully exposed in poses and activities involving actual sexual intercourse, fellatio and cunnilingus between both males and females and other sexual activities); Illinios v. Ridens, 282 N.E.2d 691(I11. 1972), cert. denied. 95 S.Ct. 2000(1975) (magazines showing nude men and women in seductive embraces, posed with their legs spread so as to focus on their genitals); North Carolina v. Horn, 203 S.E.2d 36(N.C. 1974), cert. denied. 95 S.Ct. 238 (magazines depicting both males and nude females engaged in both bi-sexual and homosexual sex play, nude males and females showed in various positions in copulation and nude males and females engaged in cunnilingus and fellatio.); North Carolina v. Bryant, 203, S.E.2d 27(N.C. 1974), cert. denied. 95 S. Ct. 238 (films showing actual acts of sexual intercourse, fellatio and cunnilingus performed by and between human male and human females); Washington v. J-R Distributors Inc., 512 P.2d 1049 (Wash. 1973), cert. denied. 418 U.S. 949(1974) (magazines "Bed Play" and "E-Jac" containing photos graphically depicting unclothed males and females engaged in acts of masturbation, sexual intercourse, fellatio and cunnilingus.); Garcia v. State, 633 S.W.2d 611 (Tex. App. 1982) (magazine entitled "Best of Cum". Front and back covers displaying full page photographs of male ejaculating onto nude females and containing 100 pages of photographs depicting nude males ejaculating onto females.).

While the overwhelming majority of cases finding material to

be obscene have dealt with depictions of patently offensive "hard-core" sexual conduct, descriptions of the same conduct by words alone may also be legally obscene. In Kaplan V. the Supreme Court upheld an obscenity conviction based on a book called Suite 69 which had a plain cover and contained no pictures. 1523 The Court described the book as

California,

consisting,

1522

entirely of repetitive descriptions of
physical, sexual conduct, "clinically"
explicit and offensive to the point of being
1524

nauseous.

The content of the book was "unvarying" and included "almost every conceivable variety of sexual contact, homosexual and Chief Justice Burger wrote in Kaplan:

heterosexual

1525

When the Court declared that obscenity is not
a form of expression protected by the First
Amendment, no distinction was made as to the
medium of the expression. 1526

The Court concluded that [o]bscenity can, or course, manifest itself in

conduct."1527

the written and oral description of

Materials found not to be obscene under Miller frequently depict nudity without explicit sexual activity or merely contain

In Jenkins

v.

some sexually explicit language.1528 Georgia, 1529 The Supreme Court reversed an obscenity conviction involving the motion picture "Carnal Knowledge". The Court noted that the film appeared on many "Ten Best" lists for 1971 and received generally favorable reviews from critics. 1530 One of the actresses in it received an Academy Award nomination. 1531 The Court quoted one review of the film which described the plot as the story "of two young college male, roommates and lifelong friends, forever preoccupied with their sex lives." 1532 The Court cautioned that under Miller, juries do not have "unbridled discretion" in determining what is patently offensive or appeals

v.

1528 See, United States v. Huffman, 502 F.2d 419(D.C. Cir. 1974) (Collection of photos of two females engaged in undressing, caressing, fondling, and embracing each other. In many of the photos the subjects were nude.); Penthouse v. McAuliffe, 610 F.2d 1353(5th Cir. 1980) (January 1978 "Playboy" magazines); Salvail v. Nashua Board of Education, 469 F.Supp. 69(D.N.H. 1979) ("Ms. Magazine. Some fiction articles "offensive", but containing materials of interest to researchers of feminist view point); Right to Read Committee School Committee, 454 F.Supp 703(D. Mass. 1978) (Poem entitled "The City to a Young Girl" which included words "pussy" and "cunt". The court found the language to be "tough" but not obscene.); Hunt v. Keriakos, 428 F.2d 606(1st Cir. 1970) cert. denied. 400 U.S. 929 (photos of female anatomy with no sexually explicit activities); United States v. Central Magazine Sales Limited, 381 F.2d 82174th Cir. 1967) (photo magazines containing nude photos including some Attorney, 282 A.2d 126 (Md. 1971) (nude young males with genitals prominently displayed); State v. Cardwell, 539 P.2d 169 (Or. App. 1975) (entertainment guide with ads for adult book stores, texts and pictures promoting "Sexy Saunas", photos of nude women retouched with black markings on breasts and genitals) State v. Walden Books, 386 So. 2d 342(La. 1980) (Penthouse Magazine).

1529 418 U.S. 153(1974).

1530 Id. at 158.

1531 Id. at n.5.

1532 Id. at 158.

to the prurient interest, and restated the proposition that obscenity under Miller only encompasses materials that "depict or describe patently offensive "hard-core' sexual conduct

The Court went on to describe "Carnal Knowledge,"

finding that,

While the subject matter of the picture is,
in a broader sense, sex, and there are scenes
in which sexual conduct including "ultimate
sexual acts" is to be understood to be taking
place, the camera does not focus on the
bodies of the actors at such times. There is
no exhibition whatever of the actors'
genitals, lewd or otherwise, during these
scenes. There are occasional scenes of
nudity, but nudity alone is not enough to
make material legally obscene under the
Miller standards. 1534

The Court held that "Carnal Knowledge was "simply not the public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain'" which Miller proscribes. 1535 As a matter of constitutional law, the film did not depict sexual conduct in a patently offensive way. 1536

In Erzoznik v. City of Jacksonville, the Supreme Court found unconstitutional a Jacksonville, Florida,

1537

ordinance

prohibiting the showing of films containing nudity by a drive-in movie theatre where the screen is visible from a public street or place. The ordinance specifically proscribed any motion picture

1533 Id. at 160, quoting 413 U.S. 15, 27(1973).
1534 Id. at 161.

depicting "the human male and female bare buttocks, human female

bare breasts, or human bare pubic areas.
Erzoznik, the Court concluded that,

The ordinance is not directed against
sexually explicit nudity, nor is it otherwise
limited.

Rather, it sweepingly forbids display of all
films containing any uncovered buttocks or
breasts, irrespective of context or
pervasiveness. Thus it would bar a film
containing a picture of baby's buttocks, the
nude body of a war victim, or scenes from a
culture in which nudity is indigenous. The
ordinance also might prohibit newsreel scenes
of the opening of an art exhibit as well as
shots of bathers on a beach. Clearly

all nudity cannot be deemed obscene even as
to minors. 1539

(emphasis added)

1538

In

However, the Miller standard may be adjusted to prohibit materials on the basis of their appeal to minors even if they are not obscene to adults. 1540 In Ginsberg v. New York, 1541 the Supreme Court considered whether it was constitutionally impermissible for the state of New York to accord minors under age seventeen a more restricted right than that assured adults to determine for themselves what sexual material they may read or The defendant was convicted of selling two "girlie"

see.

1542