Little Art Corp. v. Nebraska

Background

A person was convicted in Nebraska for circulating and publishing allegedly obscene motion pictures under a broad state law, § 28-921. The Nebraska law criminalized the sale, distribution, possession with intent to distribute, and advertisement of many sexually oriented materials. The state’s obscenity test, set out in another provision, asks whether the material “appeals to the prurient interest” — in other words, excites lustful thoughts beyond customary candor.

Reasoning

The Supreme Court agreed to consider the case, then vacated the conviction and sent the case back to Nebraska for further consideration in light of several recent Supreme Court obscenity decisions, including Miller v. California and related cases. The Court’s order did not resolve the underlying free-speech question itself; instead, it directed the state courts to re-examine the conviction under the new standards announced in those cases. One Justice (Douglas) separately expressed the view that state regulation of obscenity is forbidden and would have reversed the conviction.

Real world impact

Nebraska must re-evaluate the conviction and its law using the newer Supreme Court obscenity rules. The outcome may change on rehearing, and this order is not a final ruling on whether the speech was protected. The decision mainly pauses the conviction and requires a fresh look rather than announcing a final winner in the free-speech dispute.

Dissents or concurrances

Justice Brennan, joined by Justices Stewart and Marshall, dissented: he argued the Nebraska statute is facially overbroad and would invalidate it, saying governments may not wholly suppress sexually oriented materials except for distribution to juveniles or unwitting adults.