Happy Friday and welcome to the 18th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. If you are interested in the previous installments you can find them at the links below:
"Originally posted at Squarestate.net"
First Amendment Friday 1 - Abrams v US
First Amendment Friday 2 - Gitlow v New York
First Amendment Friday 3 - Whitney v California
First Amendment Friday 4 - Brandenbrug V Ohio
First Amendment Friday 5 - Bridges V California
First Amendment Friday 6 – Planned Parenthood V ACLA
First Amendment Friday 7 - New York Times V Sullivan
First Amendment Friday 8 - Butts V Curtis
First Amendment Friday 9 - Gertz v Welch Inc.
First Amendment Friday 10 - Hustler V Falwell
First Amendment Friday 11 - Bartniki V Vopper
First Amendment Friday 12- Landmark V Virginia
First Amendment Friday 13 - Nebraska Press Assoc. V Stuart
First Amendment Friday 14 - New York Times V. US - The Pentagon Papers
First Amendment Friday 15 - Gooding V. Wilson
First Amendment Friday 16 - Lovell v City of Griffin
First Amendment Friday 18 - Roth V United States
This week we move into the section of the syllabus which deals with obscenity and pornography.
The Case:
There are two cases in this decision, Roth V US and Albert V California
Mr. Roth was convicted under the US anti-pornography statute
Mr. Albert was convicted under the California statute which makes it a crime to keep for sale or advertise material which is "obscene or indecent"
The Facts:
Mr. Roth operated a business in New York, dealing in books and magazines whose content was of an explicate sexual nature. He used mailed circulars as part of the advertising for his business.
Mr. Albert operated at mail order business for books, magazines and photographs of an explicate sexual nature, in Los Angles.
The Procedural History:
Mr. Roth was convicted in the Southern District Court of New York for 4 counts of using the mails to send obscene advertisements, circulars and an obscene book.
He appealed to the 2nd Court of Appeals which upheld the conviction.
He appealed to the United States Supreme Court.
Mr. Roth argued the statute he was convicted under was unconstitutional as it infringed on the Ninth and Tenth Amendments ceding of rights to the States.
Mr. Albert was convicted of a misdemeanor under California Penal Code; he had waved his right to a jury trial.
He appealed his conviction to the Appellate Department of the Superior Court of the State of California.
Mr. Albert argued that since his was a mail order business and the Federal government had enacted an anti-obscenity statute, the California law was pre-empted.
The Supreme Court noted probable jurisdiction and agreed to hear this case in conjunction with Roth.
The Legal Issue:
Were each of the convictions actually constitutional in regards to the First, Fourteenth, Ninth and Tenth Amendments?
The Majority Opinion:
Mr. Justice Brennan wrote the majority opinion.
Justice Brennan gets straight to the majorities thinking on this case, namely that if it is obscene, it can never under any circumstances be protected speech. He writes:
The dispositive question is whether obscenity is utterance within the area of protected speech and press. [n8] Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. Ex parte Jackson, United States v. Chase,; Robertson v. Baldwin,; Public Clearing House v. Coyne, Hoke v. United States,; Near v. Minnesota,; Chaplinsky v. New Hampshire, Hannegan v. Esquire, Inc.,; Winters v. New York,; Beauharnais v. Illinois,.
The majority is trying to make it easy on themselves, though they are about open a real can of worms. Justice Brennan is relying on the idea that not all speech is protected by the First Amendment. He finds that obscenity is part of that class of unprotected speech. The problem which he will spend most of the rest of the opinion trying to tie down is the definition of what is obscene.
He makes tries to give a definition of obscenity which will protect works of art and science while still allowing demonetization of sexually explicate material. To the Dog he does a horrible job. He writes:
However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.
He is saying with the prurient interest point as long as you don’t feel ashamed or that you are looking at something forbidden, art or science which deals with sex is fine. It when you get a dirty thrill you can be sure it is obscene.
Since Justice Brennan has made what he feels is the definitive argument on defining obscenity and has stated that obscene speech is never protected he goes on to take the arguments for Fourteenth, Tenth and Ninth Amendment problems apart.
Roth's argument that the federal obscenity statute unconstitutionally encroaches upon the powers reserved by the Ninth and Tenth Amendments to the States and to the people to punish speech and press where offensive to decency and morality is hinged upon his contention that obscenity is expression not excepted from the sweep of the provision of the First Amendment that
"Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." (Emphasis added.) That argument falls in light of our holding that obscenity is not expression protected by the First Amendment. We therefore hold that the federal obscenity statute punishing the use of the mails for obscene material is a proper exercise of the postal power delegated to Congress by Art. I, § 8, cl. 7. [n32] In United Public Workers v. Mitchell, 330 U.S. 75, 95-96, this Court said:
. . . The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail. . . .
Alberts argues that, because his was a mail-order business, the California statute is repugnant to Art. I, § 8, cl. 7, under which the Congress allegedly preempted the regulatory field by enacting the federal obscenity statute punishing the mailing or advertising by mail of obscene material. The federal statute deals only with actual [p494] mailing; it does not eliminate the power of the state to punish "keeping for sale" or "advertising" obscene material. The state statute in no way imposes a burden or interferes with the federal postal functions.
. . . The decided cases which indicate the limits of state regulatory power in relation to the federal mail service involve situations where state regulation involved a direct, physical interference with federal activities under the postal power or some direct, immediate burden on the performance of the postal functions. . . .
Railway Mail Assn. v. Corsi, 326 U.S. 88, 96.
The judgments are Affirmed.
Basically Justice Brennan points out Mr. Roth is completely misreading the Tenth and Ninth Amendments in regards to the power of the Congress to regulate the posts. So he is flatly out of luck.
He then points out to Mr. Albert the fact the Federal statute is, as in Roth, only concerned with the mailing of obscene materials (otherwise it would be unconstitutional) and so has nothing to do with the California statute which makes it a misdemeanor to possess for sale obscene materials.
The Dissenting Opinion:
Mr. Justice Douglas wrote the dissent.
Justice Douglas makes a strong, and to the Dog’s mind right, point these statutes both are trying to punish an effect which is not corporeal, namely thoughts, not actions. This is at odds with most of the rest of the laws in the US which tend to wait for actual acts before putting sanction on them.
He writes:
When we sustain these convictions, we make the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader. I do not think we can approve that standard and be faithful to the command of the First Amendment, which, by its terms, is a restraint on Congress and which by the Fourteenth is a restraint on the States.
In the Roth case, the trial judge charged the jury that the statutory words "obscene, lewd and lascivious" describe "that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts." He stated that the term "filthy" in the statute pertains "to that sort of treatment of sexual matters in such a vulgar and indecent way, so that it tends to arouse a feeling of disgust and revulsion." He went on to say that the material "must be calculated to corrupt and debauch the minds and morals" of "the average person in the community," not those of any particular class.
Justice Douglas is very concerned that we are suppressing material which arouses sexual thoughts, he writes:
The tests by which these convictions were obtained require only the arousing of sexual thoughts. Yet the arousing of sexual thoughts and desires happens every day in normal life in dozens of ways. Nearly 30 years ago, a questionnaire sent to college and normal school women graduates asked what things were most stimulating sexually. Of 409 replies, 9 said "music"; 18 said "pictures"; 29 said "dancing"; 40 said "drama"; 95 said "books", and 218 said "man." Alpert, Judicial Censorship of Obscene Literature, 52 Harv.L.Rev. 40, 73.
The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the judge or the jury thinks has an undesirable impact on thoughts, but that is not shown to be a part of unlawful action, is drastically to curtail the First Amendment.
The concern here is the classic slippery slope. If the Supreme Court allows the suppression of some types of speech because of the thoughts it would arose, where does that end? Right now it is about sex and in the name of the good of the community, but where would that lead? Should we suppress books on Communism because they would lead to thoughts of a new political order which could disrupt the community?
He makes that point here:
I can understand (and at times even sympathize) with programs of civic groups and church groups to protect and defend the existing moral standards of the community. I can understand the motives of the Anthony Comstocks who would impose Victorian standards on the community. When speech alone is involved, I do not think that government, consistently with the First Amendment, can become the sponsor of any of these movements. I do not think that government, consistently with the First Amendment, can throw its weight behind one school or another. Government should be concerned with anti=social conduct, not with utterances. Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor.
The legality of a publication in this country should never be allowed to turn either on the purity of thought which it instills in the mind of the reader or on the degree to which it offends the community conscience. By either test, the role of the censor is exalted, and society's values in literary freedom are sacrificed.
Then Justice Brennan goes on to hammer the Majority for its "it is obscene if you get a secret thrill out of it" test, or prurient interest. Justice Brennan:
The Court today suggests a third standard. It defines obscene material as that "which deals with sex in a manner appealing to prurient interest." Like the standards applied by the trial judges below, that standard does not require any nexus between the literature which is prohibited and action which the legislature can regulate or prohibit. Under the First Amendment, that standard is no more valid than those which the courts below adopted.
Justice Brennan concludes with:
Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it. Giboney v. Empire Storage Co.,; Labor Board v. Virginia Power Co.,. As a people, we cannot afford to relax that standard. For the test that suppresses a cheap tract today can suppress a literary gem tomorrow. All it need do is to incite a lascivious thought or arouse a lustful desire. The list of books that judges or juries can place in that category is endless.
I would give the broad sweep of the First Amendment full support. I have the same confidence in the ability of our people to reject noxious literature as I have in their capacity to sort out the true from the false in theology, economics, politics, or any other field.
Summary:
The Dog thinks the Majority got this completely wrong and Justice Brennan got it right. It is not a good thing to suppress speech of any kind, under the name of the good of the community. To do so is to take the parternalistic aspects of the State to a level which infantilizes the people forever. It is only by exposure to a wide variety of thoughts does a person gain the perspective and ability to decide for herself or himself what is of value and what is not. By limiting what the people may read or see if they choose to, we prevent the development of this facility. This is an extreme danger to a democracy.
It is unfortunate that some kinds of speech are out there, that it may inflame or incite some of the less stable of society to illegal or violent action. But we have laws to deal with those times, and should not collectively give up the freedom of expression in order to try to prevent these aberrations.
So there is this week’s case and the Dog’s point of view. What is yours citizens? Did the Majority get it right, should we use a vague definition of obscene based on what the community thinks, or should we let it all hang out and trust adults to make adult decisions and then hold them accountable for those decisions?
The floor is yours.
Housekeeping:
As always great thanks to the Cornell Law School’s Legal Information Institute for this weeks case. You can find it at this link.