The conviction was affirmed by the Appellate Department of the Superior Court of the State of California in and for the County of Los Angeles. The dispositive question is whether obscenity is utterance within the area of protected speech and press. The guaranties of freedom of expression in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. However, sex and obscenity are not synonymous.
Obscene material is material which deals with sex in a manner appealing to prurient interest.
The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press.