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.
I live in a country in the Middle East in which the internet is censored. It is the most frustrating and infuriating thing imaginable. Surfing the web is a nightmare because even a lot of sites that aren't pornographic but fit someone's idea of "offensive," get blocked. You have no idea how your stomach gets twisted in knots when you realize there is some jerk in front of a computer deciding what I am allowed to read and see. Every time i see the "Blocked by NAME OF ISP" I want to throw a rock through the monitor. I'd rather have pornography on the internet than have someone else decide what I can look at.
Mockingbird, not loon.
In Miller v. California, supra, the Supreme Court said: "This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. . . . The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a 'misuse of the great guarantees of free speech and free press . . . 'The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political or social changes desired by the people'. . .But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter." [Emphasis added by Miller Court]
When Porn Defenders Challenge Obscenity Law Enforcement:
Whenever you take a public stand against traffic in illegal hardcore pornography, pornographers and their defenders will make cliched arguments to undermine your effort. The answers published here will help you to respond. They are adapted from Morality in Media's publication Cliches - Debunking Misinformation about Pornography and Obscenity Law, which is available from MIM ($3.00 per copy).
Cliche #1. District Attorneys and U.S. Attorneys have good reason for not enforcing the obscenity laws - namely, "limited resources and more important priorities."
•Generally speaking, limited budgets and priorities determine what gets most of a prosecutor's attention. They rarely justify a prosecutor's decision to refuse to enforce some laws altogether -- especially when the refusal continues throughout the prosecutor's term of office. Can you imagine a prosecutor refusing to prosecute consumer fraud cases because he or she decided to concentrate his or her energies on prosecuting those who violate environmental protection laws? Or refusing to enforce laws aimed at endangering the welfare of a minor because he or she wanted to concentrate on prosecuting corrupt politicians? Or refusing to prosecute assault and rape cases involving spouses and "domestic partners" because he or she wanted to focus on drug violence?
Prosecutors are typically required, either by their oath of office or by statute (or both), to enforce all of the laws. Prosecutors who fail or refuse to enforce obscenity laws are not doing their job; and by not doing their job, they are exposing individuals (young and old), families and the entire community to serious harm. Excuses for not enforcing obscenity laws vary. Some prosecutors may be unaware of the harms that pornography causes; or may mistakenly believe that it is their job to address the results of moral breakdown (rape, sexual child abuse, domestic violence, teen violence, prostitution, etc.) rather than a cause of it. Prosecutors with political aspirations may fear that the liberal media will not support enforcement of obscenity laws. Other prosecutors are ideologically opposed to obscenity laws.
But whatever their excuse, most prosecutors will begin enforcing obscenity laws when enough citizens complain; and the community will be a better place as a result of the enforcement.
Cliche #2. Pornography is thriving, so the American people must want it or accept it.
•Almost every national opinion poll -- including a March 2002 Wirthlin Worldwide poll for Morality in Media -- has shown that the majority of Americans are opposed to the traffic in pornography and support legal measures to curb it. The majority care, but they are confused and discouraged in the face of a highly organized propaganda campaign orchestrated by the pornography industry and its defenders.
Cliche #3. Pornography is a victimless crime.
•The victims of the pornography industry are strewn from coast to coast. They include sexually abused children, corrupted teens, degraded and violated women, addicted men, broken marriages, ruined neighborhoods, AIDS victims, and ultimately, the very soul and humanity of a nation.
Cliche #4. When "consenting adults" view obscene material, no one is being harmed.
•The U.S. Supreme Court said in 1973: "We categorically disapprove the theory that obscene films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. Rights and interests other than those of the advocates are involved. These include the interest of the public in the quality of life, the total community environment and possibly, the public safety itself.
"Apart from sex crimes . . . there is a 'right of the Nation and of the States to maintain a decent society.'
" . . .The sum of experience . . . affords an ample basis . . . to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex." (Paris Adult Theater I v. Slaton)
In Paris Adult Theater I, the Supreme Court held that a government does not need conclusive scientific proof that porn causes sex crimes before it acts to curb traffic in obscenity. As the Court noted, many laws rest on judgments that cannot be proven scientifically. The Paris Court also recognized that the prevention of sex crimes is not the only reason for prohibiting the dissemination of obscenity.
Cliche #5. Pornography is harmless. The 1970 Presidential Commission report said so.
•The 1970 Majority Report of the Presidential Commission on Obscenity and Pornography was called a "scientific scandal" by many in the scientific community. A minority report of that commission (the "Hill-Link Minority Report") cited numerous instances where evidence was suppressed when it went counter to the predetermined "findings" of the majority report. In addition, the Hill-Link Minority Report was read into the record in both Houses of Congress as a "responsible position on the issues," and was later cited four times by the Supreme Court in upholding obscenity laws. However, pornographers and their defenders continue to resurrect the flawed and discredited majority report, which was rejected by the President and by the U.S. Senate (by a vote of 60 to 5).
Cliche #6. You cannot legislate morality.
•Yes, you can. Think of all the criminal laws - those against theft, rape, murder, robbery, and so forth. Defining what is morally right and wrong is and always has been the essence of the legislative function. Public morals are the business of the entire community, and it is public morality that obscenity laws are designed to safeguard. In its Paris Adult Theater I decision (1973), the Supreme Court said that a legislative body could prohibit obscenity "to protect 'the social interest in order and morality.'"
Cliche #7. Who are you to tell me what I can see or read? You are imposing your morality on me!
•A. I am not telling you what to see or to read. The people, through their elected representatives in Washington, D.C. and in over 40 state capitals, have decided that obscene materials cannot be distributed in interstate commerce or in their states. The people, with the approval of the courts, have decided to protect themselves, their families, and their communities from the harms associated with hard-core obscene pornography.
•B. Pornography invades the home in the form of mail porn, dial-a-porn, video porn, cable porn, satellite-to-dish porn, and now computer porn. The reality is that the sex business is trying to impose its libertine immorality on an entire nation by appealing to the worst in individuals and exploiting human weakness.
•C. In any society, someone's morality (or immorality) must prevail. The real question becomes, "Whose will prevail in America?" The pornographer's, leading to anarchy and decadence? Or the moral principles of those who honor the Judeo-Christian code -- a code which has been embraced, not imposed, as the cornerstone of Western civilization.
Cliche #8. Why bother enforcing the law? The "adult" bookstores keep operating while their owners are in the courts, and even if they close eventually, they later come back.
•A. Persistent, continuous, and vigorous enforcement of the law is the answer. When arrests and prosecutions begin, the sex industry is put on warning. Prison sentences and fines can eventually put the pornographers out of business. Many cities across America were ridded of obscene material because of vigorous, continuous law enforcement.
•B. The RICO (Racketeer Influenced and Corrupt Organizations) laws provide a powerful weapon against the pornography industry. Besides imposing stiff fines and prison sentences, RICO laws can force the forfeiture of all assets of a pornography business, including real property, stores, vehicles, and bank accounts. This is what breaks the racketeer's financial back. The federal government and some state governments have RICO obscenity statutes. Every state should be armed with such a law.
•C. "The price of freedom is eternal vigilance," as one of our nation's Founding Fathers said.
Cliche #9. If you'd let pornography flow freely, people would get bored and the problem would take care of itself.
•A. This boredom or satiation theory is invalid. Many users of pornography do not get bored; they become addicted, seeking more and more bizarre materials. For many, pornography-fueled fantasies must eventually give way to action, which includes sexual abuse, rape, and sometimes even murder.
•B. Because of a lack of obscenity law enforcement throughout the 1970's and most of the 1980's, pornography was allowed to flow freely. Yet, instead of pornography going away, it has lured more and more people into destructive addictions.
•C. Remember also that new markets for the industry are being created every day as children and teens succumb to the allure of pornography.
Cliche #10. People who fight pornography are anti-sex, prudish, and sexually repressed.
•Anti-sex? Surely you joke. The pornography business takes the beauty of real love and converts it into soulless, commercialized slime. The porn-fighters protect healthy sexuality with the key ingredients of love, tenderness, commitment, and the privacy of intimate moments. If "prudish" and "sexually repressed" are the labels attached to those who oppose the depictions of sadomasochism, gang rape, sexual orgies, bestiality, rubbing excrement on others, ad infinitum, then we will wear those labels proudly.
Copyright © 2001-2004, Morality in Media, Inc. All Rights reserved.
http://www.obscenitycrimes.org/cliches1.cfm
I'm saying that it's not as simple as it may first appear. For example, I'm not even sure what you mean by pornography. The definition seems to change from speaker to speaker. Is Playboy pornography, or does pornography require the depiction of sex acts? If Playboy is pornography, then why aren't nude paintings pornography? Those just examples, not the actual thrust of my argument.
In other words, I'm asking for careful, deliberate, considerate contemplation of the matter at hand instead of endless generalities. And yes, I am saying that I don't want to live in a society that seeks to do away with authors like Nabokov, Metalious, Lawrence, etc. I'll find any and all efforts to turn my society into such an oppresive one.
Simple. By exhibitionism, I presume you mean flashing and the like. Last time I checked, flashers didn't obtain permission from the flashee beforhand. If they did, there wouldn't be much to call the police about.
On the other hand, Playboy magazine (for example) doesn't show anyone pictures of naked women who don't first agree to looking at pictures of naked women. That's one hell of a difference.
Don't you hate it when cliches turn out to be true?
I'm more interested in your response to the Constitutional questions. Do you propose to ban pornography in a manner consistent with the original intent of the Commerce Clause? If Madison's account of the nature of the power given Congress to regulate commerce is correct (I think that's a pretty safe bet - he wrote it), then what you are proposing is not a valid exercise in regulating commerce (among the several states, or otherwise). If it is indeed a "moral imperative", you should be prepared to demand an amendment to the Constitution, or to take up arms against the government if they do not.
"So were our Founders who had laws against pornogrpahy and prostitution simply variants of Marxists?"
Not at all, "radical", but the founding fathers were wise men, not all-perfect gods. Even very good people are capable of very bad ideas. It was extremely hypocritical of the founding fathers to legislate their morality at the expense of other consenting adults while preaching the freedom and individual liberty that made it's way into the greatest national document (however imperfect) man has yet devised--the Constitution.
They were wrong here, and so are you.
•Legal Definition of "Pornography":
Main Entry: por·nog·ra·phy
Pronunciation: por-'nä-gr&-fE
Function: noun
: material that depicts erotic behavior and is intended to cause sexual excitement
NOTE: Pornographic material is protected expression unless it is determined to be obscene. However, child pornography is illegal under federal and state laws prohibiting the depiction of minors in sexual acts. —por·nog·ra·pher /por-'nä-gr&-f&r/ noun —por·no·graph·ic /"por-n&-'gra-fik/ adjective —por·no·graph·i·cal·ly adverb
Source: Merriam-Webster Dictionary of Law, © 1996 Merriam-Webster, Inc.
"Well then, I submit you're no different from the average anarchist who wants no government interference in their lives."
Anarchist, Robert? Now you're reaching.
Even if this oppression you support, the type called "legislating morality", was a view that the Founding Fathers had in common with you, you should know that the FF also had the foresight/wisdom to pass a vital Amendment meant to remedy their own mistakes (as well as those of future generations).
They passed the Second Amendment, and it protects me from your vile intrusions upon MY right to life, liberty, and the pursuit of happiness. Unless it hurts somebody else (which adult consenting porno does not, nomatter what sexually repressed televangelists like you say), that means I can do pretty much what I damn well like to.
You want to change that? Prepare to meet my "2nd Amendment".
A Bible, a house, my TV, porno....it's all private property. Funny concept for you, huh? Private property?
•Legal definition of "Indecent exposure":
Main Entry: in·de·cent exposure
Function: noun
: the exposing of one's private body parts (as the genitals) either recklessly or intentionally and under circumstances likely to cause offense or affront
NOTE: Indecent exposure is generally classified as a misdemeanor.
Source: Merriam-Webster Dictionary of Law, © 1996 Merriam-Webster, Inc.
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You are right. Exhibitionism is different in a major way. It's obvious why it (indecent exposure) is illegal in any form, whereas pornography is illegal only if it is determined to be obscene.
Here's a "sub"-question to that: Say, a person is downloading his email, and it contains spam which displays an obscene photo meant to lure you to a pornographic website. Would that be similar to indecent exposure?
•Anti-sex? Surely you joke. The pornography business takes the beauty of real love and converts it into soulless, commercialized slime. The porn-fighters protect healthy sexuality with the key ingredients of love, tenderness, commitment, and the privacy of intimate moments. If "prudish" and "sexually repressed" are the labels attached to those who oppose the depictions of sadomasochism, gang rape, sexual orgies, bestiality, rubbing excrement on others, ad infinitum, then we will wear those labels proudly.
Was that really worth posting a 2nd time?
Is indecent exposure substantially different than obscene pornography?
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