*290 “(a) It shall be unlawful to knowingly send or cause to be sent, or bring or cause to be brought, into this state for sale, distribution, exhibition, or display, or in this state to prepare for distribution, publish, print, exhibit, distribute, or offer to distribute, or to possess with intent to distribute or to exhibit or offer to distribute any obscene matter.”
“The free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.”
“Under the Constitution of the United States, obscenity is excluded from constitutional protection since it is utterly without redeeming social importance. Alberts v. State of California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). Likewise under the Constitution of the State of Tennessee obscenity has no protection.” (Emphasis added.) 220 Tenn. 101, at 104, 105, 414 S.W.2d 638.
“The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject being responsible for the abuse of that liberty.” (Emphasis added.) 440 A.2d at 522.
[W]e sit as a court of last resort, subject solely to the qualification that we may not impinge upon the minimum level of protection established by Supreme Court interpretations of the federal constitutional guarantees. But state supreme courts, interpreting state constitutional *296 provisions, may impose higher standards and stronger protections than those set by the federal constitution. It is settled law that the Supreme Court of a state has full and final power to determine the constitutionality of a state statute, procedure, or course of conduct with regard to the state constitution, and this is true even where the state and federal constitutions contain similar or identical provisions.
The free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.
It shall be unlawful to knowingly send or cause to be sent, or bring or cause to be brought, into this state for sale, distribution, exhibition, or display, or in this state to prepare for distribution, publish, print, exhibit, distribute, or offer to distribute, or to possess with intent to distribute or to exhibit or offer to distribute any obscene matter.
Thus the Court had moved from a view in which the obscene was unprotected because utterly worthless (Roth ), to an approach in which the obscene was unprotected if utterly worthless (Memoirs ), to a conclusion in which obscenity was unprotected even if not “utterly” without worth (Miller ).
There is little likelihood that this development has reached a state of rest—or that it will ever do so until the Court recognizes that obscene speech is speech nonetheless, although it is subject—as is all speech—to regulation in the interest of unwilling viewers, captive audiences, young children, and beleaguered neighborhoods—but not in the interest of a uniform vision of how human sexuality should be regarded and portrayed.
Our experience with the Roth approach has certainly taught us that the outright suppression of obscenity cannot be reconciled with the fundamental principles of the First and Fourteenth Amendments. For we have failed to formulate a standard that sharply distinguishes protected from unprotected speech....
In this state any person can write, print, read, say, show or sell anything to a consenting adult even though that expression may be generally or universally considered “obscene.”
If any person print, publish, import, sell or distribute any book, pamphlet, ballad or any printed paper containing obscene language or obscene prints, pictures or descriptions, manifestly tending to corrupt the public morals; or introduce the same into any family, school or place of education; or have the same in his possession for the purpose of loan, sale, exhibition or circulation, with intent to introduce the same into any family, school or place of education, he shall be guilty of a misdemeanor.
unlawfully, wilfully, wickedly, and scandalously, did then and there live, cohabit, and use together as man and wife, in lewd acts of fornication and adultery, openly, notoriously and publicly, they not being married,....
When Judge Blackstone says that the crime of adultery is not taken cognizance of by the temporal courts, this is to be understood of secret and private adultery; for if open and notorious, it comes within his description of a grossly scandalous and public indecency.
... did unlawfully commit open and notorious lewdness by then and there unlawfully, obscenely, and of purpose causing and permitting his said slaves to go about in said county, so naked and destitute of clothing,....
in a public place, and in the presence and hearing of divers good citizens of the State, then and there being, unlawfully did utter, publish, speak and say, the following gross, scandalous, profane and blasphemous language.... To the great scandal and common nuisance of all good citizens so then and there being as aforesaid, to the manifest corruption of public morals....
publicly use profane and blasphemous and obscene language in the hearing of divers citizens so as to become a nuisance....
Accordingly, when, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.
That no person shall deny the being of a God or the truth of the Protestant religion or the divine authority either of the Old or New Testament, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil government within this state.
That no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any minister against his consent; that no human authority can in any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given, by law, to any religious establishment or modes of worship.
Congress shall make no law ... abridging the freedom of speech, or of the press.
That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained.
The declaration of rights hereto prefixed, is declared to be a part of the Constitution of this State, and shall never be violated on any pretence [sic] whatever.
All discussion must start with the realistic recognition that commercial speech enjoys a qualified protection under the First Amendment and under Article I, Section 19 of the Constitution of Tennessee. Neither constitutional provision is subject to analysis in terms of absolutes; all basic rights of free speech are subject to reasonable regulation.
The government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.
[t]he only way to preserve the secrecy of the ballot is to limit access to the area around the voter. Accordingly, [that Court held] that some restricted zone around the voting area is necessary to secure the State's compelling interest.
It follows therefrom that there is in Pennsylvania no fundamental right to protection from prosecution for the publication of matter abusive of the right to free expression, viz. obscene matter. In short, obscenity does not enjoy the full protection of Art. I, § 7 of the Pennsylvania Constitution of 1874. (Emphasis added.)
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