Posted on 09/30/2004 1:56:48 PM PDT by Tailgunner Joe
Obscenity is not encompassed within the phrases "freedom of speech" or "freedom of the press." There is no constitutional protection for obscenity, federal or state. Since this is so, Congress and the state legislative bodies may adopt laws to proscribe and punish those who manufacture, distribute, exhibit, or advertise obscene materials. Since no inroads are made by such legislation on protected speech, it is not necessary to look for a "clear and present danger"; nor even is it required to find a "compelling" or "substantial" federal or state interest to justify such laws. Unless the one challenging such laws can show that they are "irrational" under the due process clauses of the Fifth or Fourteenth Amendments, they will be upheld. Of course, passage of such laws is an exercise in police power, and under our concept of "ordered liberty," laws find their philosophical underpinnings in the protection of the health, safety, welfare or morals of the people. Under the principle of majority rule, therefore, laws with such underpinnings, those which are not irrational, may be passed by a simple majority of the legislature. To those who say "I don't like such laws" or "You are forcing me to comply with moral standards other than my own," we say, "You are living in a democratic republic where majority rule is the law. If you don't like it, short of revolution, your democratic response is to either change the Constitution or prevail upon the legislatures to repeal the obscenity laws -- but don't try to obsfucate the law by making false claims that such regulation is unconstitutional."
The inherent danger to "public morality" (or "collective morality" -- a term used by Dallin H. Oaks, President of Brigham Young University) of obscene publications and the necessity to proscribe the same by legislation has been recognized from the time of Aristotle who said:
"The legislator ought to banish from the state, as he would any other evil, all unseemly talk. The indecent remark, lightly dropped, results in conduct of like kind. Especially, therefore, it must also forbid pictures or literature of the same kind."
Our common law tradition from England always considered obscenity a proscribable utterance. Sir William Blackstone, the compiler of that tradition, said:
"Every free man has an undoubted right to lay whatever sentiments he pleases before the public . . . but if he publishes what is illegal, he must take the consequence of his own temerity . . . [It is necessary] to punish . . . offensive writings . . . for the preservation of peace and good order."
Obscenity has always similarly been considered proscribable in the United States. Following Blackstone and the English common law, we have applied the punishment after the fact on the purveyor of obscenity.
In 1682 a bill was introduced and enacted as a General Law of the province of East New Jersey providing punishment for those who uttered "obscene words." This was followed by a similar law in West New Jersey in 1683. As early as 1712 the province of Massachusetts adopted a law against publishing "filthy or obscene" pamphlets.
In other states, in our early history, obscenity was looked upon as a common law crime. In 1808, Connecticut indicted an individual for the display of "an indecent picture or sign." In 1815 Pennsylvania courts upheld an indictment for exhibiting an obscene picture for money as a common law offense, the court stating that "neither is there any doubt that the publication of an obscene book is indictable." The presiding Judge Yeates noted:
"Where the offense charged is destructive of morality in general . . . it is punishable at common law. The destruction of morality renders the power of government invalid, for government is no more than public order. It weakens the bands by which society is kept together. The corruption of the public mind, in general, and debauching the manners of youth, in particular, by lewd and obscene pictures . . . must necessarily be attended with the most injurious consequences. We find that in 1770 in the case of King v. Wilkes, that the defendant was convicted for an obscene "Essay on Women."
In 1821, Massachusetts courts convicted one Holmes of the misdemeanor of publishing an obscene book. In 1824, Vermont passed an obscenity statute. In 1842, the Congress of the United States prohibited the importation of obscene materials. In 1865, the predecessor of the present federal mail statute was passed. In 1897, Congress adopted a criminal statute against interstate transportation of obscenity and in 1929 prohibited the broadcasting of obscenity.
Since no one seriously thought that the First Amendment protected objectionable material of this sort, there were no direct First Amendment challeges. It was not until 1957 that the issue was seriously presented to the United States Supreme Court in the Roth-Alberts case. In Roth, Justice Brennan speaking for the majority of the Court said:
"It is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. . . . At the time of the adoption of the First Amendment . . . obscenity . . . was outside the protection intended for speech and press. The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection . . . is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all forty-eight states and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene. We hold that obscenity is not within the area of constitutionally protected speech or press."
The question of whether it is necessary to show that obscene materials induce criminal acts arises because of the legal theory produced in Schneck v. United States in which Mr. Justice Holmes stated:
"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater causing a panic . . . The question . . . is whether . . . the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent."
Holmes indicates thatt you cannot constitutionally inhibit "free speech" unless failure to do so is likely to create a clear and present danger of substantive evil. There are people who argue that you can't prove that obscenity produces such an evil; hence, you ought not to legislate against it. The complete answer to such an argument is that obscenity has been determined on many occasions not to be "free speech" (even though it is an utterance) and therefore there is no necessity to prove that antisocial effects will eminate from it.
Notes Justice Brennan in Roth-Alberts at 354 US 486:
"It is insisted that the Constitutional guarantees are violated because convictions may be had without proof either that obscene material will perceptibly create a clear and present danger of anti-social conduct or will probably induce its recipients to such conduct. But in the light of our holding that obscenity is not free speech . . . it is unnecessary for us or the state court to consider the issues behind the phrase 'clear and present danger'. . . "
Added Justice Harlan in a concurrance at 354 US 501:
"It seems to me clear that it is not irrational in our present state of knowledge, to consider that pornography can induce a type of sexual conduct which a state may deem obnoxious to the moral fabric of society. Even assuming that pornography cannot be deemed to cause, in an immediate sense, criminal sexual conduct, other interests within the proper cognizance of the States may be protected by the prohibition placed on such materials. The state can reasonably draw the inference that over a long period of time the indiscriminate dissemination of materials, the essential character of which is to degrade sex, will have an eroding effect on moral standards."
In the 1973 Paris Adult Theater decision, the Supreme Court again gives us an additional constitutional-philosophical rationale for the existence of obscenity law when at 413 US 59 the Court states:
"We hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity . . . These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers and possibly the public safety itself. The Hill-Link Minority Report of the Presidential Commission on Obscenity and Pornography indicates that there is at least an arguable connection between obscene material and crime. . . . Quite apart from sex crimes there remains one problem of large proportions aptly described by Professor Bickel:
'It concerns the tone of society . . . the style and quality of life, now and in the future. A man may be entitled to read an obscene book in his room, or expose himself indecently. There we should protect his privacy, but if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places -- discreet, if you will, but accessible to all -- with others who share his tastes, then to grant him his right is to affect the world about the rest of us and to impinge on other privacies. Even supposing that each of us can, if he wishes effectively to avert the eye and stop the ear (which in truth he cannot) what is commonly read and heard and seen and done intrudes on us all, want it or not.' "
In Paris Adult Theatre, Chief Justice Burger summed it all up when he said, "There is a right of the nation and of the states to maintain a decent society."
On the same day that Paris Adult Theatre was decided the Supreme Court also decided Kaplan v. California in which it stated:
"States need not wait until behavioral experts or educators can provide empirical data before enacting controls on obscene matter not protected by the Constitution."
Mr. Dallin H. Oaks, the author of a monograph entitled "The Popular Myth of Victimless Crime," took office as President of Brigham Young University in 1971. He had served as Law Clerk to Chief Justice Earl Warren, as a Professor of Law at the University of Chicago, and Executive Director of the American Bar Foundation, and as Assistant State's Attorney in Cook County, Illinois. In that monograph, Mr. Oaks made the following remarks regarding the positive impact of legislating to improve societal civility:
1. "The criminal law also exists for the protection of society at large. The 'standard-setting' function of law can also be overlooked by those who are occupied with whether a particular law can be effectively enforced. Enforcement is an important consideration, but not a dispositive one. Because of its 'teaching' and 'standards setting' role, the law may serve society's interest by authoritatively condemning what it cannot begin to control directly by criminal penalties. This standard-setting function of law is of ever-increasing importance to society in a time when the moral teachings and social controls of our nation's families, schools and churches seem to be progressively less effective.
2. "The repeal of laws also can have an educative effect. If certain activities are classified as crimes, this is understood that the conduct is immoral, bad, unwise, and unacceptable for society and the individual. Consequently, if an elective legislative body removes criminal penalties, many citizens will understand this repeal as an official judgment that the decriminalized behavior is not harmful the individual or to society. Indeed, some may even understand decriminalization as a mark of public approval of the conduct in question. . . . The law is an effective teacher for good or evil.
3. "It is inevitable that the law will codify and teach moral values not shared by some portion of the society -- usually a minority.
4. "Preservation of the public health, safety and morals is a traditional concern of legislation. This does not justify laws in furtherance of the special morality of a particular group, but it does justify legislation in support of standards of right and wrong of such sufficient general acceptance that they can qualify as 'Collective Morality.' "
<![if !supportEmptyParas]>The obscenity laws are here to stay no matter how much the ACLU rails against them or tries to force upon us their version of the Constitution. Laws that protect societal decency are being enforced with greater frequency although progress is not always visible. These laws are here because a consensus of the American people want them. This is reflected in all of the polls taken by Messrs. Gallup and Roper and the laws of all the states. The 1970 Report of the Presidential Commission on Obscenity and Pornography -- advocating the abolition of obscenity laws -- came from a stacked commission (the hand-picked Chairman and General Counsel were both active members of the ACLU) whose preconceived conclusions were vigorously rejected by the President and by the Senate via a vote of 60 to 5 (and rejected by the Supreme Court in Miller (1973) and its progeny). The Supreme Court in those decisions quoted wiht approval the Hill-Link Minority Report of that Presidential Commission. The Hill-Link Report condemned the majority report as biased, seriously flawed and lacking in credibility.
There is a right to maintain a decent society. The word "decent" is by nature a moral criterion and those who don't like morality as a justification for governmental action will have to accept the constitutional police power principle that "Consensus Morality" is now, ever was, and always will be a solid legal basis for obscenity legislation.
Correct, American soldiers fight for freedom or the preservation of it. (at least they should) and those things, drinking, whoring around, gambling, etc... are freedoms we have. All are legal under the laws of the USA.
I'm not conflating, I'm pointing out that the courts calling the bible "hate literature" is not a very distant slide down the slippery slope of letting the government enact content-based restrictions on what acts of consenting adults may be read about and viewed by consenting adults.
The post to which I was replying was scoffing at the idea that government restrictions on pornography could lead to government restrictions on the Bible. After all, Noah's daughters did try to get him drunk have sex with him, remember.
That's a good question. Do I?
I don't (seem to) need God to make me dislike murder, or even make me want to do hurtful things to murderers. But that's not quite there, is it?
What would you suggest?
I simply don't agree with those measures. I totally believe in the first amendment, IE. your right to worship as you see fit without fear of persecution from the gov. or another party within the union (or outside) Again, I do not agree with the USA gov in any way furthering the cause, or acting in the interest of organized religion, beyond protecting it's right to exist.
The drawings didn't start until the original elmer gantrys' made it evil.
Beware.. Common sense becomes addicting, once you start to use it as a matter of course.
"Not when you advocate putting your god into institutions my tax dollars pay for..."
No, sir. You have it wrong. You advocate taking my God out of the institutions that were cornerstoned by the Ten Commandments...the same Ten Commandments that are displayed in the chambers of the US Supreme Court in recognition of that fact.
When you remove the Judeo-Christian tenets of our Republic from the Republic it cease to be what it was created to be: a nation whose people do not need to be controlled by their rulers because they find themselves individually accountable to their Maker.
Read Alexis de Tocqueville if you haven't already. He was a secular Frenchman who understood the unique relationship of God in American institutions. He saw that our government was only effective in that it was for a faithful people. Take away God and America ceases to be what it is and it will become something else.
Frankly, since the atheist/Communist onslaught in the post-war period America has, indeed, changed. And not for the better.
So why should I care about my survival? Besides, the topic at hand, pornography, isn't about destroying society, merely hurting it. As long as I get my jollies in relative safety and comfort, why care about the other fellow?
Atheists practice what is known as enlightened self-interest, which means they work for the good of society, not because some big guy in the sky is forcing them to, but because they know that without society, they'd be up an unsanitary tributary without a means of propulsion.
Good for you.
Now tell me why it is obligatory for ME to practice enlightened self-interest.
It strikes me as odd that there are so many people who would do evil if God wasn't keeping them on the straight and narrow. Those folks give me the willies.
The strait and narrow path has nothing to do with works, in the first place.
In the second place, I'm saying I would or wouldn't do anything. I'm asking why, if the impulse strikes me, I ought not to.
Give me someone who does good out of his own self-interest any day of the week -- I can trust that kind of honesty.
And suppose his self-interest was to do evil.
So you think you know the First Amendment better than its drafters?
If you're primarily worried about the DMB you don't get out much.
"a nation whose people do not need to be controlled by their rulers because they find themselves individually accountable to their Maker. "
You're exactly right! Don't get me wrong, I do not loathe religion and undestand the positive impact it has on the lives of many. What I DO loathe is the corrupting and oppressive qualities it exhibits when the power that comes with it falls into the wrong hands... Catholic Europe, the theocracies throughout the ME, etc. Religion, since its inception has often been used as a control mechanism, and being that the history of that is well established, as freedom loving people, we should prevent any such 'institution' with such a history to rear its head within the ranks of our ruling powers.
I do not agree with the display of the Ten Commandments in any government facility. It is a step in a dangerous direction, history proves it so.
bunpkin
And, finally, it seems that whereas they might call you "bigot" or "theocrat," you deem them "libertines." Of course, I can't see anyone of your unique intellect actually understanding the aforementioned point.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. "
Please show me where in this amendment it is stated the government shall support any one religion by displaying its texts in a public venue?
What does this line mean to you? "Congress shall make no law respecting an establishment of religion"
Um, no Tailgunner, you are missing an extremely important element of the argument:
Pornography is an ENTIRELY subjective, opinion-based classification. What constitutes Porn to one person is simply a normal sexual act/experience to another. Your definition of what is "acceptable" sexual behavior is limited by your own religious/social beliefs, and your standards may be different than mine. I can respect your views and not agree or accept them. This gives you no right to send agents of the law into MY homes, or to MY community's local stores to enforce YOUR personal sexual beliefs.
I may be a Republican because I support strong national defense, tax cuts and lower tax rates, the 2nd Amendment (absolute) right to bear arms, and the protection of human life from the womb forward, but "moral standard legislation" when it comes to so-called pornography is one of the few (very few) issues in which your common liberal exhibits more sense than (your type of) conservative.
Let's get this straight. The U.S. Constitution is not a document which justifies intrusion into the private lives and bedrooms of adult U.S. citizens by their government. Rather, the Bill of Rights is meant to limit such repressive tactics from authority figures, even those of the so-called conservative Fallwell/FCC persuasions.
Why do so many people who claim to want the federal government's nose out of their business and their family's life continue to impose their moral standards on the rest of us through just those means? Why do people like you, otherwise great lovers of freedom and skeptics of federal oppression continue to give the government a pass into our homes and our lives because you disapprove of our behavior?
Government intrusion is just that, Tailgunner, whether it's for our guns, our beliefs, or our personal effects and property (which includes porn and drugs as well as it does property, jewelry, electronics, money, etc). If that's how you interpret the Constitution than you can keep it. You're no different from those left-wing "living document" tyrants who impose their will America's citizens on abortion, gays, etc.
Very well said, good post.
Hey, from what I've seen, there is NO DOUBT about their priorities.
Besides killing animals for food and keeping away from frostbite (including frostbite on their 'junk'), what else was there to do?
It reminded me of the pictograms we place on our NASA probes throughout the solar system, you know, in case E.T. finds it... so they could understand what we were all about. Well, Mr. Cave Paint wanted future generations to know what they were all about. There were some smaller paintings of deer and that sort of thing, but 'the goods' were obviously very important.
Well put, Rock.
--- Joe will be unable to make any coherent reply.
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