The Sales Pitch

A man was prosecuted under a state law for selling two reels of film that the state said were obscene. At trial the judge told the jury that, in deciding whether the films were utterly without redeeming social importance, they could consider the circumstances of sale and distribution — particularly whether the films were being commercially exploited for the sake of their prurient appeal. The defence objected that this let jurors convict because of how the films were marketed rather than what they contained, in violation of the First Amendment, and that it was unfair to apply such a rule without fair warning that a seller's pitch could count against him.