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.
OK A.J. Maybe I was working too hard to avoid using a religious faith argument to make my point.
Those of us who believe in God and the Bible recognize that morality is passed down from God but I often find that atheists, agnostics and libertarians refuse to recognize that fact, so I point out that even if you don't accept religious justification for morality, it still exists in a humanist form.
I have to confess, I am confused now as to what your problem is with my original post. Was it the willingness to use a humanist argument? If so, that was because I detected (perhaps incorrectly) a lack of acceptance that morality comes from a higher authority.
Legalization of drugs is an absolute must if the U.S. is to stand by it's mostly hollow rhetoric about supporting the free market and capitalism. This will not happen as long as the politicians want an easy issue in which to cloud the minds of otherwise rational, freedom-loving family people with senseless, emotion-based rhetoric every campaign season.
As for "euthanasia", I am completely against the federal or state government using it's legal-system to force a mentally competant, adult individual from deciding when they wish to end their own lives. If there is a doubt as to the competancy of the individual, then this right shall be deferred until the mental state of the individual is determined.
Legalization of drugs is an absolute must if the U.S. is to stand by it's mostly hollow rhetoric about supporting the free market and capitalism. This will not happen as long as the politicians want an easy issue in which to cloud the minds of otherwise rational, freedom-loving family people with senseless, emotion-based rhetoric every campaign season.
As for "euthanasia", I am completely against the federal or state government using it's legal-system to force a mentally competant, adult individual from deciding when they wish to end their own lives. If there is a doubt as to the competancy of the individual, then this right shall be deferred until the mental state of the individual is determined.
Abortion, on the other hand, is completely unacceptable (as would be the suicide of a pregnant woman) because it infringes on another, seperate human entity, as this being is created and formed by God at conception (with the mother being the recepticle of nourishment and warmth during the months prior to birth, and not the same person as the child).
"WE will simply have to agree to disagree. Though one must consider how society has fared since the day that we stopped "legislat[ing] their morality at the expense of other consenting adults."
Fine, then disagree we shall. I never said that you cannot mourn your negative perception of society's moral fabric today, only that you have no right to put this opinion into a binding legal form.
Sorry about the double post. I accidentally sent the first one off before I finished my thought (and yes, I do realize the irony of posting a third time to apologise for a double post).
The problem is that you can't legislate belief. At the absolute best, you can make them assume the outward trappings of the belief system you want to mandate, but not the belief itself. As someone who's not a christian, in a mostly christian (ha!) society, I'm accutely aware of just how little power anyone has to change the heart or mind of another.
You indicated in the posts above that you were not sure what I meant by the words "pornography" or "exhibitionism", so I quoted the definitions in order to clear up the uncertainties.
I want to know what offends you, what you want to ban.
I guess the MAIN thing that offends me is the proven connection between violent crimes and pornography. And it is troubling to me that there are laws against pornography and other sexually-oriented businesses that are not being enforced.
As for what I want to ban, well, it isn't so much a desire to ban anything that isn't already illegal as it is to see the existing laws enforced. An exception might be internet material that is erotic in nature and that is unasked-for by the consumer (child or adult). For instance, when a picture pops up out of nowhere that is intended to sexually arouse a person so that they will follow a link to a pornographic website--- that is troubling to me. I can't give you any specifics on how I would want that banned or whatever; I can only tell you that it is something that I might like to see changed in some way. Sorry I can't be more specific at this time.
You expressed your opinion that I am anti-sex. The paragraph that I posted twice is my reply as I didn't think you got it the first time. Sex is a great gift from God. When it's engaged in by two committed adults, it's awesome. I'm not at all uptight about it or against sex in general... just against unhealthy or inappropriate sex. Don't make unfounded & personal accusations and I won't post the reply again.
I don't know how to answer that generally... I think both are harmful. I do think that pop-up pornography or spam pornography on the internet is pretty much the same as indecent exposure, in that both are unasked-for.
Sorry, but you've once again let the ENTIRE point of my positions slide by you.
I don't have much more time here (if you'd like, I'll pick this up tomarrow), but I'll leave you with a brief key with which to understand my previous notes.
1.) GOD is a personal Savior. He cannot, and should not, be legislated/regulated by a federal or state government, either for or against. My personal belief in God, and trust in him, cannot call me to legally impose my worldview, my morality, upon you, as long as such questionable acts are undertaken by consenting adults and do not harm anyone who does not wish to be affected by this act. "Society" is hardly your responsibility. As a Christian, I witness the love and power of Christ over our souls, not our pocketbooks or legal documents.
2.) It is within your rights to hate porn, drugs, or just about anything you damn well please, but it is NOT within your right to take the case of your opinions or prejudices before the government, the ruling of which will infringe on the rights of those with different opinions on this matter (example: Porn is in the eye of the beholder, NOT the law. You might consider a tasteful sexy mag like Playboy as porn, while I most certainly do not. You might believe that sex before marriage is a sin. That is your personal belief, which you are entitled to. But you cannot legally compel me to conform with that belief (and I don't). Sexuality is between the individual(s) involved and their God.
3.) You cannot "allow" someone to kill themselves as it is not YOUR choice to begin with. This is a HUGE blunder on your part (sorry). It is the choice of the individual alone, using the ***free will*** over his mind and body that God alone has given him. Personally, I don't even believe in suicide. I believe that real men and women suck it up and accept that life is hard and that there are people who will miss them when they're gone. It's better not to rush the inevitable fact that all humans die.
However, if one were so inclined to feel different about this, there are friends and family who are within their rights to dissuade them.
But doesn't a Christian have the same responsibility as any other citizen to voice their opinions and wishes in our representative form of government?
You could see the point, which makes you smarter than most folks out there.
Those of us who believe in God and the Bible recognize that morality is passed down from God but I often find that atheists, agnostics and libertarians refuse to recognize that fact, so I point out that even if you don't accept religious justification for morality, it still exists in a humanist form.
1) "Libertarian" is not a synonym for unbeliever.
2) In a sense, morality still exists whether a person chooses to accept it or not, since God still exists. But all the stuff I said still stands: you can't justify an "ought" within an atheist worldview. They rarely accept this in theory, and never in practice, because otherwise life is unlivable. For an atheist, a human as distinct from animal life is dependent on illusion. Only some of them really understand this.
I have to confess, I am confused now as to what your problem is with my original post. Was it the willingness to use a humanist argument? If so, that was because I detected (perhaps incorrectly) a lack of acceptance that morality comes from a higher authority.
Partly that.
You also seem to suppose that proving pornography is immoral means it should be prohibited. But this presupposes a great deal, that should be argued for rather than assumed, about the proper function of the government.
nailed it.
they want to control YOUR private property.
your body.
your family.
your sex life.
your food.
your, well,
every thing they can get away with.
they are the liberty and property theives...
they believe America is evil and decadent and that our judgement, and punishment would be just. In fact, they wouldn't mind carrying it out themselves betimes.
religious extremists looking for governmental powers to subvert... not unlike the mulllahs of iran.
thank God,
because of our constitution, they will live their lives frustrated by the liberties of others.
Are they similar enough that the govenrment's authority to ban one would also cover the other?
I have said before, and will say again, that any free nation has to have a common moral belief system running through it, which is what gives the people of that nation the freedoms it enjoys ---
We have that 'system', it's called our Constitutional rule of law, under due process.
--- Legalising drugs and euthanasia will further the inroads that the culture of death has already made into Western societies.
You have it backwards.
The criminalizing of mind altering substances by the prohibitionist movement has partially lead to the scofflaw society we see about us. Ignoring our Constitutional freedoms for communitarian/socialist values is the real problem we have faced over the last hundred years.
The free market is a great thing, but without the family a society is nothing. It turns from a free society into Godless, Social Darwinian nation.
That was part of the battle cry of the victorian Prohibitionists. They were closet socialists. We reap what they planted.
Porn is a threat to families because of the perversions it creates and worsens, and it's portrayal of sex as an action with no meaning or consequences. It is thus a direct threat to society, and so must be banned (same goes for euthanasia and drugs).
Our governments, fed/state/local are not delegated the power to 'ban' our rights to life, liberty, or property, without due process of law:
"The full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints,". . .
Justice Harlan
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