Copyright (c) 2006 Duquesne University
Duquesne Law Review
ARTICLE: Justice Michael A. Musmanno and Obscenity (1956-1967)
44 Duq. L. Rev. 649
Joel Fishman 1
From 1957 to 1973, the United States Supreme Court was engaged in revising what was the contemporary view of obscenity. The Court's opinion in Roth v. United States (1957) provided that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." 3 It took another sixteen years, until Miller v. California (1973), for the Court to articulate its three-prong test for obscenity: "(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value." 4
The Pennsylvania Supreme Court followed the United States Supreme Court in a "lockstep" approach, 5 supporting the expansion of obscenity decisions dealing with both films and books. Before the Miller decision, Roth was considered the "standard" view of how obscenity should be defined through court cases. In these decisions, however, Associate Justice Michael A. Musmanno consistently opposed the majority decisions and viewed obscenity or pornography as a major problem for society. His quotation, cited in the opening paragraph, reflects his views, as well as those of others, on the subject. His decisions represent Supreme Court Justice William Brennan's view of a single justice who votes ...
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