Gent v. Arkansas

Gent v. Arkansas was a U.S. Supreme Court case in which an Arkansas law designed to eliminate the distribution of obscene material was challenged. Though it did not touch directly upon the limits of the state’s ability to control obscenity, it did reinforce legal opinion that standards for obscenity must be those applied by the U.S. Supreme Court rather than local standards.

In 1961, the Arkansas legislature passed Act 261, which, among other things, purported to eliminate obscene material, which was defined by the current community standards applied by the average person. The legislature based the wording of Act 261 on a model act drafted by the Council for Periodical Distributors Associations (CPDA) designed to give public prosecutors the authority to protect the morals and welfare of the public through speedy prosecution of non-residents distributing obscene materials, while also relieving pressure on resident dealers and wholesalers of periodicals whom the CPDA believed had been unfairly singled out.

Act 261 made it a felony to distribute, or cause to be distributed, mailable and non-mailable written or printed matter that the distributor knew had been declared obscene, as well as to inform anyone how such matter could be obtained. The act also made it a misdemeanor to knowingly possess obscene material. Furthermore, the act empowered a court that found material to be obscene to issue a permanent injunction against distributors of the material, direct the resident who possessed the material to dispose of it, and, if the resident failed to dispose of it, to direct all sheriffs in the state to seize and destroy all such materials found.

Two years after the passage of Act 261, Dr. William E. Brown formed a censorship committee whose purpose was to discover pornography and rid Pine Bluff (Jefferson County) of it. The committee identified eight newsstands in which such material was located. Only one of the identified newsstand dealers, Anne Nickell, refused to remove the subject magazines from her newsstand, and the committee promptly filed suit against her and her distributor, Burnham News Agency. Gent magazine, which was one of eight magazines identified as obscene in the complaint, joined Nickell and Burnham in responding to the complaint, denying that the magazines were obscene or that they appealed to prurient interest. They claimed that Act 261 was void because, among other things, it violated the First and Fourteenth amendments of the Constitution and applied the wrong test—a local community standards test for obscenity, rather than a national standard.

The court refused to permit Gent’s response to be heard, claiming that it had not been tendered in time, but it allowed Nickell and Burnham to respond and held a hearing in front of an advisory jury, which was instructed that there were no constitutional protections for filth, obscenity, or prurience in published materials; this committee found all of the identified magazines obscene. Gent and its publisher appealed to the Arkansas Supreme Court, which granted standing to Gent but, in its majority opinion, delivered on May 24, 1965, disagreed with Gent that the U.S. Supreme Court had issued a national, rather than a community, standard for indecency. The dissent noted that the U.S. Supreme Court had found other attempts to prohibit obscenity violations of freedom of expression under the First Amendment and expected the court to find the same in this case.

Gent appealed to the U.S. Supreme Court, which agreed to hear the case but initially limited its review of the case to whether the material was obscene in the constitutional sense. In its majority opinion, which it rendered on May 8, 1967 (deciding Gent along with Redrup v. New York), the Court reversed the Arkansas Supreme Court’s decision and concluded that the distribution of the magazines was protected from governmental suppression by the First and Fourteenth amendments. While there was no majority opinion as to what extent, if any, the government could suppress, control, or punish the distribution of materials based upon obscenity, the Court found that the two lower courts had incorrectly allowed the application of local community standards of obscenity rather than the standards applied by the U.S. Supreme Court. The Court did not, however, find Act 261 unconstitutional. The dissent argued that Gent lacked a substantial federal question and voted to dismiss the appeal, concluding that the majority had decided the case on questions that were not properly presented by the appellants.

For additional information:
Barker, Joel. “The Arkansas Law on Obscenity and Gent v. Arkansas.” Arkansas Historical Quarterly 29 (Spring 1970): 48–65.

“Redrup v. New York.” U.S. Supreme Court Center. http://supreme.justia.com/us/386/767/case.html (accessed March 2, 2022).

Matt Runge
Little Rock, Arkansas