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Privacy Rights in the Digital Age

Stanley v. Georgia, 394 U.S. 557 (1969)

by Mary M. Penrose

A unanimous Supreme Court opinion upholding the right of an individual to possess, but not produce or distribute, certain obscene materials in the privacy of his home. The opinion was written at the end of the Warren Court era, an expansive period for individual rights between 1953 and 1969 when Earl Warren served as Chief Justice. The case, written by Justice Thurgood Marshall, highlights the importance of First Amendment freedoms as protections against criminal prosecution. As we learn in Stanley, the First Amendment protects more than just words; it also protects the “right to receive information and ideas,” Stanley v. Georgia, 394 U.S. 557 (1969), at 564.

Police officers came to Stanley's home to execute a search warrant seeking evidence that Stanley was involved in illegal gambling activities. The officers did not find any evidence of gambling but found three reels of 8 mm film in Stanley's bedroom that allegedly contained obscene materials. Officers used a projector found in Stanley's home to watch the film before leaving. Believing the films violated Georgia's obscenity laws, the police arrested Stanley.

Stanley was tried and convicted of possessing obscene materials. The Georgia state courts upheld his conviction. For this reason, Stanley filed a petition for certiorari with the U.S. Supreme Court seeking permission to appeal his Georgia conviction. Stanley argued that simply possessing obscene materials was protected under the First Amendment. Because the First Amendment has been held to apply to all fifty states through the incorporation doctrine of the Fourteenth Amendment, the Supreme Court granted the requested petition for certiorari and gave Stanley permission to challenge his conviction.

Justice Marshall's opinion agreed with Stanley that the First Amendment protects “mere possession” of obscene materials from criminal prosecution (394 U.S. at 559). Unlike an earlier Supreme Court case involving the mailing of obscene materials to others, Roth v. United States (354 U.S. 476 [1957]), Stanley was not accused of distributing or producing obscene materials. Instead, Stanley was convicted of simply possessing obscene films. In a famous quotation from the Stanley case, Justice Marshall explained, “[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch” (394 U.S. at 565).

Georgia sought to criminalize possession of obscenity to protect its citizens against deviant behavior, including sexual violence, and to make it easier to enforce obscenity laws prohibiting distribution of obscene materials (394 U.S. at 566–67). The Supreme Court, however, did not accept either interest as outweighing Stanley's right to possess the obscene films in his own home.

Obscenity, often confused with pornography, is not treated the same as pornography under the law. While pornography may be controversial, only materials that are considered obscene can be outlawed or restricted. In Roth v. United States, a case described above, the Supreme Court held that obscenity is low-value speech that falls outside the First Amendment's protection. The first clear test for obscenity was provided in Miller v. California, 413 U.S. 15 (1973). Still, as the Stanley case demonstrates, certain obscene materials may be possessed in the privacy of one's home under the First Amendment.

While Stanley remains a strong First Amendment case, its holding and impact has since been limited. Stanley does not protect obscene displays in public. In the 1973 case, Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973), the Supreme Court upheld a Georgia law prohibiting public displays of obscene films. The Supreme Court, with Chief Justice Warren Burger writing for the majority, distinguished the right of an individual to view obscenity in private from the right of an individual to do so at a public theater. Both Miller and Slaton mark a turning point in the Supreme Court as the new Burger Court, led by Chief Justice Warren Burger, sought to constrict many of the broad individual rights established under the Warren Court.

Stanley does not provide protection to individuals who possess child pornography, even in the privacy of their home. In 1990, the Supreme Court, in an opinion written by Justice Byron White, refused to extend Stanley's First Amendment protection to a case involving possession of live child pornography in the home. The case, Osborne v. Ohio, 495 U.S. 103 (1990), shows that some governmental interests, such as protection of children, outweigh First Amendment protections even in the privacy of one's home.

Unlike the obscene materials at issue in Stanley, where there was no evidence anyone was harmed during filming, videos containing sexual images of live children have been found by the Supreme Court to cause sufficient injury to overcome a First Amendment defense. New York v. Ferber, 458 U.S. 747 (1982), was a unanimous Supreme Court opinion holding that child pornography, much like obscenity, is of such low value that it does not merit First Amendment protection. Justice White also authored the Court's opinion in Ferber. Osborne and Ferber provide important limits on the Stanley precedence.

The Supreme Court has drawn a line, however, between live depictions of child pornography and virtual depictions of child pornography. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court, in an opinion written by Justice Anthony Kennedy, found that virtual images of children engaged in pornographic acts was protected under the First Amendment. The Supreme Court distinguished virtual child pornography from actual, live depiction of child pornography by explaining that no crime occurs when virtual images are crafted and therefore there would be no victims in producing such works. Unlike previous obscenity cases that were unanimous, Ashcroft included three dissenting Justices who would place virtual child pornography outside the protective reach of the First Amendment.

Obscenity issues continue to raise First Amendment challenges in our society. The vital need to ensure child safety and the rapid advancements of technology suggest that the Supreme Court will continue to refine its reach of Stanley.

Further Reading

1 

Ball, Carlos A. “Privacy, Property, and Public Sex.” Columbia Journal of Gender and Law 18, no. 1 (2009).

2 

Bosmajian, Haig A. Obscenity and Freedom of Expression. New York: B. Franklin, 1976.

3 

Devol, Kenneth S. Mass Media and the Supreme Court: The Legacy of the Warren Years, 4th ed. Mamaroneck, NY: Hastings House, 1990.

4 

Friedman, Leon. Obscenity: The Complete Oral Arguments before the Supreme Court in the Major Obscenity Cases, rev. ed. New York: Chelsea House, 1983.

5 

Harrison, Maureen. Obscenity and Pornography Decisions of the United States Supreme Court. Carlsbad, CA: Excellent Books, 2000.

6 

Jasper, Margaret C. The Law of Obscenity and Pornography, 2d ed. New York: Oceana, 2009.

7 

Jones v. Alfred H. Mayer Co. (1968); Stanley v. Georgia (1969). Bethesda, MD: University Publications of America, 1975.

8 

“Karalexis v. Byrne and the Regulation of Obscenity: ‘I Am Curious (Stanley).’” Virginia Law Review 56, no. 6 (1970): 1205.

9 

Sumberg, Theodore A. “Privacy, Freedom, and Obscenity.” Journal of Critical Analysis 3, no. 2 (1971): 84–96.

See also: Criminal justice (criminal procedure), First Amendment to the U.S. Constitution; Law Eenforcement; Obscenity; Pornography

Citation Types

Type
Format
MLA 9th
Penrose, Mary M. "Stanley V. Georgia, 394 U.S. 557 (1969)." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0204.
APA 7th
Penrose, M. M. (2016). Stanley v. Georgia, 394 U.S. 557 (1969). In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Penrose, Mary M. "Stanley V. Georgia, 394 U.S. 557 (1969)." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed September 17, 2025. online.salempress.com.