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.
Don't leave. Your opinions about decency and morality count.
What about classified documents? Or the neighbor's mail?
Separation of God from government today, Separation of God from government tomorrow, and Separation of God from government FOR-EVAH!
Let your God govern your heart.
not mine.
If our morality is the responsibility of government.... who needs Jesus Christ? the Bible? freedom of Relgion? personal faith, individual choice, personal covenant, or any choices whatsoever.
one size for you, clearly fits all...
how STUPID can a religionist get?
that is why it will NEVER happen.
get used to it.
There is only one God, and He governs all the universe.
(You asked a similar question way back but I don't recall anyone answering it.)
You have made the clear error of mistaking YOUR religious convictions, for God's rules for everyone else's lives. Then you call them queers, even though you KNOW you are talking to heterosexual Christians, because they don't want YOU or your religiocratic state. A state-church union of your liking, would be doomed to failure as the state-church unions of Europe were for a millenia. Not once upon a time, but EVERY TIME.
This is the very reason why church=state unions are destined for failure and God's own judgement. They crush the free will God has ordained, and practice tyranny of one group of religious monsters over another group... that group of oppressed, when in power, will then do the same evil to the others, that was done unto them.
Religion in state is the premier recipe for bloodbaths and pogroms.
learn from history or experience it again at your own expense... not mine.
God's declared will is freedom for men to "choose ye this day whom YOU will serve," or HE wouldn't have wasted the time saying we had a choice to begin with. His will is NOT to let TJ OR Robert, determine what is, and is not moral behavior for every adult on the planet or in this nation.
Neither was it his will that anyone could then jam that morality down our collective throats at gunpoint. That is what the WAR on terrorists is about, THEY want to impose THEIR moral law on us, at threat of life and limb... fellow infidel. And they KNOW that THEIR law is from GOD.
However, they and others neglect to remember that MORALITY enforcement is HIS job, and in last weeks paper, there were no openings for that slot in the heavenly 'help wanted' adds.
It has been said that HE got ticked off with the last person who tried to take HIS job. But hey, maybe that is all just propaganda from the gays too.
goodnite joe.
Locke explained that the "law of nature" is God's general revelation of law in creation, which God also supernaturally writes on the hearts of men. Locke drew the idea from the New Testament in Romans 1 and 2. In contrast, he spoke of the "law of God" or the "positive law of God" as God's eternal moral law specially revealed and published in Scripture. - LINK
"Humane Laws are measures in respect of Men, whose actions they must direct, howbeit such measures they are as have also their higher Rules to be measured by, which Rules are two, the Law of God, and the Law of Nature; so that Laws Humane must be made according to the general Laws of Nature, and without contradiction to any positive Law of Scripture, otherwise they are ill made." - John Locke, Two Treatises on Government
Only liberals think this. Conservatives do not. We know that religion is the foundation of all culture and civilization. It is the militant atheism of fanatics who long to make the Earth "free from religion" which is responsible for the greatest number of murders in history.
What is the difference between you and an antinomian?
the muslims would agree.
and their sharia law is for every man.
no individualism need be sought.
uniformity of slaves to a hobgoblin god/state of the ever expanding ummah.
sick.
sicker when it comes from a christian.
for some, eating meat offered to idols is sin.
for others it is alright.
let him who does NOT eat, NOT condemn the one who does.
to some one day is honored above others, to other men all days are the same.
who are you to judge another man's servant, to his OWN master, (NOT TJ) he either stands or falls, and God will uphold him.
sin and morality is between a person and God.
and what is evil for you to do, may be okay for me.
what is evil for me, may be just fine for you.
God will judge.
YOU will give account for you.
I for me.
Government will not be there.
and it is not going to get there ever.
You want Government to become like God the enforcer.
I want God to enforce things for ME and for YOU as he chooses, and we allow him to.
Government is a very poor God.
You are going around, trapped in a 'moral' circle, believing that:
" Morality can be and must be legislated" (morality, meaning behavior),
It is. It's over regulated. -- We have thousands of years of common law that 'legislate behaviors'.
Not all of these 'laws' are Constitutional under our system. Arguably, we need less such law, not more.
but what is the Standard of what is moral?
The 'standard' is the golden rule. Do onto others is a valid guide to what you would have done onto you.
Do you really want your neighbors to be able to dictate their concept of morality to your family? Under our Constitution, your neighbors do NOT have that power.
Your faction here have been insisting that they do. -- Ask yourself why.
what is the difference between you and a pineapple?
who cares.
if you wanna be a pineapple, ti's your business.
NOT government's. Not mine.
wanna download porn? knock yourself out.
and keep it to yourself.
Its NONE of my business.
jump in the lake and take your lust for a theocracy for a long cold swim.
Why have any laws then? I don't judge other men, I merely demand that the law is enforced. I don't condemn the murderer, I only demand that he hastily meet his judgment. The wellbeing of his soul is between him and God.
Government is a very poor God.
I don't worship government and I don't advocate theocracy. I just don't subscribe to your erroneous belief that the government must be purged of all religious influence. You have made the First amendment into a tool of oppression against free exercise of religion, exactly what the Founders feared.
I disagree, at least in part. I'll grant you at all legislation is based on morality. However, not all morality is fit to be legislation.
Any reasonable person understands that limits on personal behavior have to be set by society, or society itself will cease to exist. I wouldn't presume to argue otherwise. However, there is plenty of room for legitimate debate about where (not if) those lines should be drawn. As with with converse, reasaonable people have to admit that some latidude must, absolutely must be given to the individual in moral decisions, in order for a soceity to remain free.
With that in mind, I think it's important for a free society to thoughfully and carefully consider not only the possible from moral legislation, but the possible detriment to liberty as well. No one is asking that stability be thrown to the winds in the name of freedom, but I fear that some here are willing to throw liberty to the wind in the name of conformity. I find this deeply troubling.
Personally, I would rather live in a society with Playboy on the rack than return to the days of Dick and Mary sleeping 3 feet apart in seperate beds. Your mileage may differ.
your erroneous belief that the government must be purged of all religious influence
Well, before I tell you the difference between me and a pineapple, tell me the difference between you and an antinomian. Be nice; I asked you first.
So says you. And in some cases, maybe you're right. But in the case of PORNOGRAPHY, I believe you are wrong. Why should no limits be placed on harmful objects and on that which has NO redeeming qualities?
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